The Korean Understanding of Popular Sovereignty in Constitutional Founding Experiences and Its Implication on the Korean Constitutional Court en banc Decision 2004Hunma554, 556, Oct. 21, 2004

Abstract

Article 1, paragraph 2 of the Korean Constitution enshrines the principle of popular sovereignty. In order to understand the meaning of popular sovereignty unique to the Korean context, an analysis of the discussions during the constitutional founding period would be necessary. This essay focuses on the discussion during the plenary sittings of the Constituent Assembly about the relationship between the principle of popular sovereignty and indirect presidential election system, which was a topic largely disregarded among the previous studies in the field of constitutional history. While thoroughly analyzing the legal and logical arguments posed by the members of the Constituent Assembly and the Constitution Drafting Committee, the political circumstances surrounding the constitution-making, which were of utmost priority for many of the members, are also considered as one of the features that affected the approval of Article 52 of the constitutional proposal stipulating indirect presidential election system. Finally, the implication of these discussions in 1948 on the Constitutional Court Decision in 2004, which relies on the understanding of popular sovereignty in ruling that the Special Act trying to relocate the administrative capital of Korea is unconstitutional, is analyzed. The implication is that various factors including constitutional importance of the matter and the opportunity of participation granted for the people must first be analyzed before concluding whether a certain means of collective decision is allowed under the principle of popular sovereignty.