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Korean Constitutional Court and the Due Process Clause

The principle of ‘due process’ was invented and developed by the countries in Anglo-saxon legal circle. It produced ‘procedural justice,’ and prevents us from falling into a pitfall that arrogance of the lawyers in Roman Civil law countries could easily fall into thinking ‘Justice lies in the codes and lawyers perfectly know about it.’ The fact that Korean Constitution in 1987 adopted due process clause implies in a sense that we reflected the dark history of misuse and overuse of law and suppression of human rights in the name of ‘law’ under military regimes(1962-1987) until then. That is the reason why the due process clause in Korean Constitution is one of the most crucial constitutional provisions in terms of human rights protection whose importance cannot be overemphasized. First of all, this paper will briefly survey the development of due process principle through the analyses of U.S. Supreme Court’s decisions focusing on substantive due process and procedural due process. After that, it will explore the background of the adoption of due process clause in Korean Constitution in 1987 and theories of Korean constitutional law scholars before and after its adoption. In addition, it examines the development of the due process principles in Korea by analyzing the Korean Constitutional Court’s decisions. Through these efforts, this paper aims at exploring some issues of consideration for the continuous development of due process principle in Korea in order to make it a kernel provision for ‘human rights protection.’ * The Author is an Associate Professor of Law, Sogang University College of Law, Korea (email: jibonglim@hotmail.com). He received an LL.B. in 1990 from Seoul National University College of Law; an LL.M. in 1996 and a J.S.D. in 1999 from the University of California at Berkeley School of Law; was a visiting scholar, University of California at Berkeley School of Law (1999-2003); was an Assistant Professor of Law, Konkuk University College of Law, Korea (2000-2006).