Democratic basic order as the object of protection of party dissolution procedures in Germany and Korea

Party dissolution procedures are considered as one means to protect the identity of a constitution. In this regard Article 21(2) of the German constitution stipulates that parties shall be unconstitutional, if they by reason of their aims or the behavior of their adherents seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany. Article 8(4) of the Korean constitution prescribes the dissolution of a political party if the purposes or activities of a political party are contrary to the democratic basic order. To understand how these procedures can protect constitutional identity, the main emphasis has to be put on the object of protection. Our study therefore investigates in detail what is meant by the (free) democratic basic order in Germany and in Korea. To this end, we analyze the recent judgment of the German Federal Constitutional Court (2017, NPD) and the decision of the Korean Constitutional Court (2014, UPP).

Impeachment Procedure in the Korean Constitutional Litigation

Impeachment is procedures of the Congress and Constitutional Court to prosecute, punish or dismiss a government official, such as a senior official in the executive branch or a judge, who is unable to be prosecuted or disciplined under general judicial procedures or disciplinary procedures. It is the system for the protection and maintenance of the Constitution from the violation of the Constitution by the senior officials of the branch. It was originated in the British parliament. The exceptional process created in situations where it was hard to deal with the corruption or illegality of the King’s dignitaries in general common law procedures. It was a kind of criminal prosecution in Parliament. The Korean impeachment procedure is a judicial model in which the parliament make a prosecution and the judiciary make a judgment. As the procedure is governed by the principle of protection of the constitution, many provisions of general criminal procedure cannot be applied as they are.

Constitutionalization of Transitional Justice and the Constitutional Identity in Korea

Since the establishment of the Constitution of the Republic of Korea in 1948, Korea has sought constitutional democracy in its unique constitutional political context. In such path, the nation experienced two military coup d’états with ensuing authoritarian regimes, then has incrementally achieved citizen-initiated democratization process. Most conspicuously noted idiosyncrasy in Korea’s democratization process is the mandate of constitutionalization requiring integration of transitional justice and democratization process, in the effort to maintain nation’s constitutional identity. This process encompasses criminal punishment of two presidents, impeachment of presidents in two cases, dissolution of a political party, all through law and judicial process. This paper will analyze the core elements and factors constituting the notion of transitional justice and mandating their “constitutionalization” in Korea, in light of Korea’s constitutional identity.

Constitutional identities and the institutionalization of transnational judicial networks

In Asia, it can be observed that efforts are underway to institutionalize networks between judiciaries, including constitutional courts. As international dialogue and research is beginning to be institutionalized among networks of these “guardians of national constitutions”, how does this affect the identities of such associations and their members? This is especially an intriguing and also significant question, when one considers the diverse range of members of transnational judicial associations. What particular fora, methods and results does collaboration within such judicial networks entail? This institutionalization of transnational judicial networks is arguably an integral aspect of the phenomenon of so-called “global constitutionalism” in the 21st century, both meriting further exploration and understanding.