Healthy Deference in the Separation of Powers: Judicial Independence and Accountability of the South Korean Constitutional Court : 권력분립의 관점에서 본 건강한 사법적 존중: 한국 헌법 재판소의 독립성과 책임성

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사회과학대학 정치외교학부
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서울대학교 대학원
Judicial IndependenceSeparation of PowersDeferenceSouth KoreaConstitutional Court
학위논문 (석사)-- 서울대학교 대학원 : 정치외교학부 정치학전공, 2016. 8. 송지우.
The role of the judiciary has expanded globally, particularly following the end of the Second World War, as a large number of former authoritarian regimes transitioned to democracies. With this expansion, the courts have become more active in their decision-making. In many democracies, courts are no longer completely restrained by the sword (executive) or the purse (legislature), but they have rather established themselves as a significant, independent and balancing political actor. With this change, scholars have raised their concerns about judicial supremacy and the judicialization of politics while questions about what determines independence in the judiciary and how to measure this independence still remain. In this regard, the central question has become how to balance judicial independence with accountability, as the two concepts appear incompatible.

The co-existence of independence with the act of deference by the court to particular political actors reflects this incompatibility. While deference appears to be inherent in the understanding of independence, there lacks a concrete definition that resolves their contradictory existence. In order to bridge the gap between these two concepts, this study introduces the idea of healthy deference, which is the courts deference to the separation of powers rather than to any particular political actor or elite. The conditions of healthy deference require that there is generally no distinction between how the court renders its decision between social cases and those of political import. However, in cases involving both the legislature and the executive that concern the separation of powers, the court will take a moderate stance, thereby appear deferent. Yet, this deference is not to the will of one actor over the other. Rather, the decision rendered defers to the separation of powers and ensures that no actor, including the court itself, will gain more power than necessary for the balancing of power between the three primary branches of government.

In order to better explain what healthy deference is and how it is compatible to judicial independence and accountability, this study examines the case of South Korea. Following a long period of Japanese colonial rule, South Korea had been grappling with judicial independence and how to delegate the powers of constitutional adjudication. While the basis for the current constitutional court can be found in the previous republics of Korea, it was only in 1988, following the transition to democracy and the establishment of the constitutional court that the once nominal powers of the judiciary became substantive powers. Following this transition, scholars have positively viewed South Koreas judicial independence. However, in comparison to other countries that transitioned to democracies around the same time, such as those in Eastern Europe and Latin America, the case of South Korea has not been studied at great lengths.

Therefore, in order to add to the literature on South Korean judicial independence as well as to the literature on judicial independence and accountability, this paper first examines the 395 major case decisions rendered by the South Korean Constitutional Court between 1988 and 2014, to determine whether there is any discrepancy in the decision-making of the court between social and political cases. Then two particular cases that appeared in favor of the executive and were of national importance are also examined. The first case is the impeachment of the late former President Roh Moo Hyun, while the second is the dissolution of the Unified Progressive Party. Looking at these latter two cases, the application of healthy deference is then shown.

The results indicate that while the court has rendered more constitutional decisions than unconstitutional ones, there is no noticeable difference in the decision-making between social and political cases. Even among the handful of cases involving disputes between governmental actors, it does not appear that actors at one level of government are favored in the decision-making of the court over governmental actors at another level of government. Furthermore, in the analysis of two nationally significant cases, it appears that the court rendered its decision based on the principle of healthy deference rather than due to influence from undue external or internal pressures. Therefore, looking at the results, this paper argues that the Constitutional Court of South Korea is judicially independent and defers to the separation of powers in its decision-making.

Lastly, healthy deference also provides the basis for explaining why the executive and the legislature are willing to confer power to the judiciary when it means a decrease to their own powers. The courts application of healthy deference in its decision making gives political actors the basis on which they can determine how their case will fare if filed for review. The courts consistency in its decision-making and its deference to the separation of powers allows these political actors and elites to strategically behave and ensure the decision favours their interests.
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College of Social Sciences (사회과학대학)Dept. of Political of Political Sciences and International Relations (정치외교학부)Political Science (정치학전공)Theses (Master's Degree_정치학전공)
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