Recently Introduced Measures of Direct and Participatory Democracy and Their Constitutional Ramifications in the Republic of Korea

韓國直接參與民主的法案與憲法爭議

本文分析晚近韓國地方自治法下的人民創制機制,國會法、請願法及地方自治法中的人民立法請願機制,罷免法中的人民罷免機制、以及刑事陪審團制度,並論及衍生的憲法爭議。本文先檢視近來運作的直接民主機制、與其促進利益代表與參與,以補充憲法上代議民主原則之功能。接著討論前揭機制在韓國特有憲政脈絡下的永續性以及憲政爭議,特別著重於憲政主義、民主以及法治原則等層面。

This article analyzes the recently introduced measures of direct democracy at the local government level and criminal jury system in the Republic of Korea, and their constitutional ramifications. The article initially examines such mechanisms as currently in operation and their intended function of activating interest-representation and participation to supplement the representative democracy that the nation's Constitution adopts as principle. The article then discusses the sustainability and further constitutional ramifications of such measures in South Korea's idiosyncratic constitutional and political context, in terms of constitutionalism, democracy and the rule of law.In the main part of the article, the article primarily looks into (1) the voter-initiative system under the Local Autonomy Act, by which the residents of a local administrative unit may request the enactment, revision or abrogation of local ordinances through subsequent involvement of the local parliament; (2) the legislative petition system under the National Assembly Act, the Petition Act and the Local Autonomy Act, and the relevant NGO legislative activities; (3) the recall system under the Recall Act, under which the residents of a local administrative unit may recall their elected officials including the governor and the members of the local legislature; and (4) the criminal jury system under the Civil Participation in Criminal Trials Act. The article analyzes the law and practice pertaining thereto, and presents relevant statistics. In the last chapter, the article analyzes further constitutional ramifications of such direct and participatory democracy measures. The concepts of constitutionalism, democracy and the rule of law in South Korea's idiosyncratic setting will be revisited as the context for such analysis.