Democratic Legitimacy of Law and the Legislative Function of the Constitutional Adjudication in the Republic of Korea

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Rhee, Woo-young
Issue Date
BK 21 law
Journal of Korean Law, Vol.6 No.1, pp. 18-43
Constitutional AdjudicationConstitutionality Review over the StatuteLegislative Function of the Constitutional AdjudicationLegislative Function of the Constitutionality Review over the StatuteRelationship between the National Assembly and the Constitutional Court in Legislation
This article is an effort to analyze the legislative function of the constitutional adjudication in the Republic of Korea in light of the democratic legitimacy of law and legislation, and its further constitutional ramifications. First, this article discusses the concept of legitimacy of law and the

legislation under a representative democracy, from traditional perspectives of proceduralism and functionalism. This article then moves to indicate that two of the core factors legitimating lawmaking from either proceduralist or functionalist theory are participation and interest representation. Based on such findings, this article analyzes democratic as well as constitutional legitimacy of the normatively legislative function assumed by the constitutionality review conducted by the Constitutional Court over the statute democratically enacted by the National Assembly, and the relationship between and the respective roles of the National Assembly and the Constitutional Court in legislation. In the conclusion, this article further deliberates upon constitutional ramifications of the

legislative function of the constitutionality review over the statute conducted by the Constitutional Court, including those pertaining to the concept of justiciability and the extent of the binding force of

the constitutional adjudication over the National Assemblys legislation.
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) Journal of Korean Law (JKL)Journal of Korean Law Volume 06 Number 1/2 (2006)
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