Rule of Law and Rule of Constitutional Law in Korea

The idea and ideology that a person must be respected only because he or she is a person originated from when human beings began to form a community. In terms of constitutional history, the thought that humans must naturally enjoy their rights as humans derived from the revolutionary situation based on the principle of natural law since the 17th century. As this idea secured its place in democratic constitutional states, an issue emerged regarding how these rights can be efficiently protected through the Constitution of each country. Since the appearance of the modern nation state, this universal ideology has been divided into municipal legal system and international legal system in which this ideology is legally protected within certain territory. This ultimately indicates that the universality of the ideology that a person must be respected only because he or she is a person must be specified in various regulations including the Constitution within a country. A constitutional state(Rechtsstaat) is a principle that state power must be bound to the Constitution and law, which indicates not governance that simply uses law as a means but governance according to the objective system called law. This will secure the predictability of the people as well as legal stability according to the legal control in exercising state power. The principle of constitutional state(Rechtsstaat) is the most important principle that penetrates the entire order of public law in the Republic of Korea including the Constitution and administrative law. This is also connected to the legal grounds for guaranteeing or limiting the people’s basic human rights, the principle of separation of powers that constitutes state power as well as the distinction and arrangement of the function of state, significance of private law (court and constitutional adjudication) according to the present Constitution, and role and function of the Constitutional Court. This constitutionalism has been formed and developed through conflicts and struggles with the absolute monarchy since modernization, and it is the fundamental principle of the Constitution that plays a key role in constitutional law along with democracy. In the end, constitutionalism is a product of struggles to bound state power to the Constitution and law. Democracy is about the formation and exercise of state power, while constitutional state is about the principles and contents that control and provide the standard for such state power to serve the people. Then the essence of the ideology of constitutional state is in control and constraint of state power as well as protection of individual freedom. The scale that determines the legitimacy of exercise of state power is the Constitution, which indicates the fundamental law and order of a state. The issue of the Constitution in a democratic constitutional state, that is, the legitimacy issue in establishment and exercise of state power is about how the relationship between individuals and nation can be established in a democratic constitutional state. In the end, if the state must exist for the people in a democratic constitutional state, and the ‘establishment of state power’ is legitimate through this, then the legitimacy of the ‘exercise of state power’ is reviewed after that. Therefore, state power is acknowledged to be legitimate only if the establishment and exercise of the state power are based on intent of the people and are for the people. The primary purpose of a constitutional state is to protect human dignity and self-determination. This individual freedom is guaranteed through the fundamental rights guaranteed by the Constitution on one hand, and the separation of powers that indicate checks and balances between powers on the other hand. Therefore, exercise of all state powers can secure both procedural legitimacy and substantive legitimacy only when these powers obey and respect the principle of constitutional state.