4

Proportionality in South Korea

Contextualizing the Cosmopolitan Rights Grammar

yoon jin shin*

The Constitutional Court of Korea began its work in September 1988 under
the 1987 Constitution of South Korea, which ended three decades of military
dictatorship in the country and remains in effect today without any subse-
quent amendment. The creation of the Constitutional Court symbolized
a new era of democracy in South Korea and the last thirty years have seen the
deepening of the court’s practice. The Korean Constitutional Court, one of
the busiest constitutional courts in Asia and in the world, adopted the
principle of proportionality in the very early stages of its operation and has
applied it to a wide range of areas under its jurisdiction. Variations and
deviations in the application of this principle have emerged as well.
Examining its practice around proportionality is timely as the court cele-
brated its thirtieth anniversary in 2018 and would provide useful lessons for
the future study of comparative constitutional law.

4.1 Constitutional Grounds for Proportionality

The Constitution of the Republic of Korea (the South Korean Constitution)
provides a textual basis for the application of the proportionality principle in
constitutional adjudication. Article 37 paragraph 2 of the Constitution, the
general limitation clause for fundamental rights, provides: “The freedoms
and rights of citizens may be restricted by Act only when necessary for
national security, the maintenance of law and order or for public welfare.”1

*
I am grateful for Gi Hyun Kim, a Research Judge at the Constitutional Court of Korea, for
her insightful feedback on the earlier draft of this Chapter.
1
The full text of Article 37 paragraph 2 of the South Korean Constitution reads: “The
freedoms and rights of citizens may be restricted by Act only when necessary for national
security, the maintenance of law and order or for public welfare. Even when such

81

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 82 yoon ji n shi n

The Constitutional Court of Korea2 and constitutional law scholars in South

Korea agree that this provision embodies the proportionality principle.3 It
lists the legitimate purposes of restricting rights – national security, the
maintenance of law and order, and public welfare – and the phrase “only
when necessary” represents the ideas of “necessity” and “narrow balancing,”
the two most important components of the proportionality principle as
described in the next section. Along with this constitutional provision, the
Constitutional Court has in some cases stated, “The proportionality princi-
ple is a fundamental principle under the constitution naturally derived from
the rule of law.”4 Thus the grounds for proportionality are found in the text
of the Korean Constitution (Article 37 paragraph 2) as well as embodied
in the rule of law. Some scholars in Korea point out that proportionality
is a principle inherently rooted in the nature of liberty rights, and thus
exists regardless of the presence of any explicit constitutional text.5 In
a publication (in English) that celebrated its tenth anniversary, the
Constitutional Court elaborated its understanding of proportionality in
the following terms:
Article 37 (2) of the Constitution prescribes the principle of proportion-
ality or prohibition of excessive restriction by stating that . . .. Since the
Constitution itself finds basic rights not entitled to absolute protection,
but rather subject to state restriction for the reason of public interest,
restriction of those rights by public authorities is not unconstitutional in
and of itself, but only when it cannot be justified constitutionally. In
reviewing the constitutionality of those governmental actions restricting
basic rights, especially liberty rights, the Court has usually employed the
rule against excessive restriction as the standard. This principle of

restriction is imposed, no essential aspect of the freedom or right shall be violated.”

Academic debates exist about the normative relationship between the first and second
sentences. In practice, the second sentence rarely stands alone as a review standard. The
Constitutional Court at most times proceeds with the proportionality test after confirming
that this paragraph as a whole represents the proportionality principle.
2
The Constitutional Court of Korea is the official English name for the Constitutional Court
in South Korea. In this Chapter I use interchangeably the Constitutional Court of Korea
and the Korean Constitutional Court.
3
See e.g. Constitutional Court of Korea 95Hun-Ka17 (Mar. 27, 1997); 88Hun-Ka13 (Dec.
22, 1989) (citing Article 37 paragraph 2 as codifying the principle of proportionality).
4
See e.g. Constitutional Court of Korea 92Hun-Ka8 (Dec. 24, 1992); 90Hun-Ba24 (Apr. 28,
1992); 89Hun-Ka95 (Sep. 3, 1990).
5
E.g., Han Su-woong, “헌법 제37조 제2항의 과잉금지원칙의 의미와 적용범위” [Der
Sinn und Anwendungsbereich des Übermaßverbots in Art. 37 Abs. 2 Koreanische
Verfassung], 95 저스티스 5 (2006) (finding proportionality’s normative grounds in the
nature of liberty rights and the general constitutional principle of the rule of law, reflecting
on German constitutional law scholarship).

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 proportionality in south korea 83
proportionality, instead of creating substantively different levels of scru-
tiny, provides a unified standard under which the relationship between
the legislative end and its means is scrutinized in three different aspects
(appropriateness, necessity, and proportionality in narrow sense or bal-
ance) and which is applied to every restriction of liberties to demarcate
and balance between the public interest and the liberty.6

As discussed in the following section, the proportionality principle has

been adopted in constitutional review since the inauguration of the
Korean Constitutional Court. It is commonly understood that Korea’s
proportionality jurisprudence was imported from Germany by the first-
generation constitutional scholars and lawyers in Korea, most of whom
studied in Germany for their doctoral degrees.7

4.2 The Structure of Proportionality Review

The Korean Constitutional Court has adopted the proportionality prin-
ciple as a standard for review in cases of fundamental rights since the
beginning of its operation in 1988. The court often uses the term “과잉금
지원칙” (“過剩禁止原則”, meaning the principle of “prohibition of
excessive restriction”) in its decisions as a substitute expression for
proportionality. This principle has also been applied in different types
of cases under the court’s jurisdiction, such as the dissolution of
a political party and presidential impeachment. A standard structure of
the proportionality review as applied in fundamental rights cases is the
following four-step test:8
(1) The legitimacy of a purpose (whether law or a state action concerned
has a legitimate purpose);
(2) The appropriateness of the means (whether a means chosen by the
law or by the state contributes to achieving the legislative purpose
identified in Step (1));

6
The Constitutional Court of Korea, The First Ten Years of the Korean Constitutional Court
(1988 ~ 1998) (The Constitutional Court of Korea 2001) 125.
7
For German influence on the early constitutional theories and practice in South Korea, see
Yoon Jin Shin, ‘Cosmopolitanising Rights Practice: The Case of South Korea’ in
Takao Suami, Anne Peters, Dimitri Vanoverbeke and Mattias Kumm (eds), Global
Constitutionalism from European and East Asian Perspectives (Cambridge University
Press 2018) 256.
8
The Constitutional Court of Korea, The First Ten Years of the Korean Constitutional Court
(n. 6) 125.

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 84 yoon jin shin

(3) The “least restrictiveness” means (whether the law or the state action is
taking the least restrictive means among all equally effective options);
(4) The balance of interests (whether the public interest achieved out-
weighs the degree of rights restriction).
While the basic structure of proportionality review has persisted since
the beginning of the court’s practice, quite a few variations and additional
standards have developed over time as discussed in Section 4.3. The
recent landmark decision by the Korean Constitutional Court on the
conscientious objection to compulsory combat service applied this four-
step proportionality test and held that the Military Service Act, insofar as
it does not recognize a conscientious objection, is unconstitutional.9 The
main part of the court’s proportionality review is summarized below:
(1) The legitimacy of a purpose and the appropriateness of the means
The Military Service Act, which limits the type of compulsory military
service without allowing an alternative service to a combat role for
conscientious objectors, has the legitimate purpose of effectively securing
military human resources and upholding national security. The provi-
sion that limits the type of military service is an appropriate means to
achieve this legislative purpose.
(2) The “least restrictive” means
Considering various factors, including relevant statistics and other
countries’ practices, the court held that the operation of a well-designed
and strictly enforced alternative service system would still allow the state
to safely achieve the legislative purpose of securing military personnel.
Limiting the type of compulsory service available to only military train-
ing therefore violates the principle of the “least restrictive” means.
(3) The balance of interests
The current provision, which does not allow an alternative service to
combat service, causes conscientious objectors to suffer significant harm.
Every year, hundreds of conscientious objectors are sent to prison for at
least one year and a half, and after serving their term, they experience
severe disadvantages as former convicts, especially in employment (for
example, being removed from their jobs, becoming disqualified for work-
ing in the public sector, and losing all the patents, permissions, and

9
Constitutional Court of Korea 2011Hun-Ba379 et al. (Jun. 28, 2018).

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 proportionality in south korea 85

licenses they obtained in various businesses). The current military system

coerces conscientious objectors to give up their beliefs with the threat of
criminal and social penalties. This inflicts serious harm on an individual’s
dignity and whole personality. Allowing them to fulfil an alternative
service to combat service would contribute better to enhancing national
security in a broad sense and the public interest, since most conscientious
objectors are imprisoned instead of drafted.
(4) Conclusion
The Military Act provision that does not allow an alternative to combat
service is in violation of the proportionality principle and thus infringes
conscientious objectors’ right to their conscience.

In April 2019, another historic decision on a major human rights issue

was issued by the court. In a 7:2 decision, the court held the Criminal Act
that virtually penalizes all abortions (with only a few statutory excep-
tions) is unconstitutional as it violates women’s right to self-
determination.10 In reaching the conclusion, the majority opinion
applied the standard four-step proportionality review. The first two
steps were treated briefly: The court held that the imposition of penal
punishment on a woman who had an abortion is an appropriate means to
achieve a legitimate legislative purpose of protecting the life of a fetus.
The next two steps of the proportionality test were examined in extensive
length. The court discussed, inter alia, the following factors: That the
Criminal Act compels a woman to continue her pregnancy and give birth
to a child, subject her to radical changes to her body and psychology, the
pain of delivery, risks to her health and even her life, and the burden of
childrearing; that nurturing a child requires continuous devotion over an
extended period of time, imposing significant pressures on her social,
educational and economic life; that whether to continue with pregnancy
and childbirth is a holistic decision that fundamentally impacts
a woman’s life and is central to her dignity and autonomy; that it is
possible to assign different legal effect to periods before and after the
twenty-second week of pregnancy when a fetus is viable. The court also
pointed to the fact that the government did not implement enough
measures to effectively protect the life of a fetus, such as improving social,
economic, and legal conditions to reduce unwanted pregnancy as well as
reduce the barriers to childrearing, as opposed to simply imposing penal

10
Constitutional Court of Korea 2017Hun-Ba127 (Apr. 11, 2019).

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 86 yoon jin shin

sanctions on women. Based on this examination, the court held that the
law that virtually criminalized all abortions satisfied neither the “least
restrictive” means test nor the narrow balancing test.
The term “proportionality principle” first appeared in the court’s
March 1989 decision, which was also the first case that the court heard
on the constitutional review over domestic legislation.11 In this decision,
the court reviewed the constitutionality of a statute setting qualifications
for judicial scriveners12 and held that the stipulated conditions under the
statute did not violate “the principle of proportionality or the principle of
prohibition of excessive restriction.”13 However, apart from briefly men-
tioning this phrase, the court did not conduct a detailed proportionality
review. The first decision in which the standard four-step review was
explicitly applied was issued in December 1989.14 In this decision, which
examined the constitutionality of the National Land Planning and
Management Act requiring government permission for every land trans-
action, the court reviewed whether this restriction violated the right to
property. The majority opinion held that the land transaction permission
system was constitutional, after conducting the four-step proportionality
review. The decision stated:
The principle of prohibition of excessive restriction specifies the limit of
exercising state power, requiring the state to meet the conditions of the
legitimacy of the purpose, the appropriateness of the means, the least
restrictiveness of the means, and the balance of conflicting interests (that
the protected public interest should outweigh the restricted private inter-
est in order for a state action to be possibly tolerated).15

11
Constitutional Court of Korea 88Hun-Ma1 (Mar. 17, 1989).
12
Certified Judicial Scriveners Act (May 12, 1986, No. 3828) Art. 4, para. 1:
Any person who falls under any of the following subparagraphs may be
qualified as a certified judicial scrivener:1. A person who has served at least
15 years as a 9th (or upper) level clerical public official, a person who has
served at least 7 years as a 7th (or upper) level clerical public official, or
a person who has served at least 5 years as a 5th (or upper) level clerical public
official, and who is deemed by the Chief Justice to have the necessary knowl-
edge in law and capabilities to conduct the operations of a certified judicial
scrivener.
13
Constitutional Court of Korea 88Hun-Ma1 (Mar. 17, 1989).
14
Constitutional Court of Korea 88Hun-Ka13 (Dec. 22, 1989).
15
Ibid. In this case, the court found the purpose of the law – to regulate real estate
speculation and to control land market price – legitimate, pointing to the constitutional
provisions that emphasize social duties and limits in exercising the right to property and
the right to land in particular: “The exercise of property rights shall conform to the public
welfare” (Constitution Art. 23, para. 2) and “The State may impose, under the conditions

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 proportionality in south korea 87

The case on the Framework Act on National Taxes decided in

September 1990 is considered to be the first case where the court
actually struck down a statute based on the four-stage proportion-
ality test.16 On the facts, the court held that a tax law had uncon-
stitutionally infringed upon a mortgagee’s right to property insofar
as the tax law provision prioritized the state’s tax claim over
a mortgagee’s claim even if the mortgage was registered before the
due date of the tax payment.17
In applying the four-step proportionality test, points for debate usually
lie in the third and fourth steps of review. However, it would be worth
noting here one landmark case in which the first step played a critical
role – Household Head System (hojuje) decided in 2005.18 The household
head system under Korean family law codified a longstanding patriarchal
culture in Korean society rooted in the Confucian tradition. Under this
system, a “household” was comprised of a “house head,” the eldest male
in a family, and his subordinated family members. The family law made
a female citizen belong to her father when she was born, to her husband
when she married, and then to her son when her husband died; in
contrast, a male citizen was free to create his own household and serve
as a head when he married. In 2001, a nationwide coalition of women’s
rights and civil rights groups brought a constitutional challenge against
hojuje before the Constitutional Court. In a 7:2 decision, the court held
that hojuje was unconstitutional as it violated individuals’ dignity and
gender equality. The majority opinion pointed to Article 9 of the
Constitution: “The State shall strive to sustain and develop the cultural
heritage and to enhance national culture” and to Article 36 paragraph 1:
“Marriage and family life shall be entered into and sustained on the basis
of individual dignity and equality of the sexes, and the State shall do
everything in its power to achieve that goal.” The court opined that
tradition and culture protected under Article 9 possesses both historical
and contemporary aspects and thus any tradition or culture should be

as prescribed by Act, restrictions or obligations necessary for the efficient and balanced
utilization, development and preservation of the land of the nation that is the basis for the
productive activities and daily lives of all citizens” (Constitution Art. 122). The majority
opinion viewed that the permission system was an adequate and necessary means to
achieve this goal and the law had properly balanced out the public interest achieved over
restriction in rights.
16
Constitutional Court of Korea 89Hun-Ka95 (Sep. 3, 1990).
17
Ibid.
18
Constitutional Court of Korea 2001Hun-Ka9 (Feb. 3, 2005).

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 88 yoon jin shin

valid according to today’s normative standards. If a traditional order goes

against constitutional values and principles, it cannot be justified in the
name of Article 9. The court held that “preserving a patriarchal family
system” through hojuje cannot serve as a legitimate legislative purpose
and the restrictions placed on gender equality and individual dignity by
this family system are therefore not constitutionally justified. Since hojuje
failed to pass even the first step of the proportionality test, the court did
not need to proceed with the next three steps of proportionality review.
By proclaiming that culture based on male supremacy is not a tradition
protected under Article 9 and invalidating the patriarchal family law at
the very first step of the proportionality review process, the court deliv-
ered a strong message to society on tradition, equality, and
constitutionalism.19
In a very small number of cases, the court invalidated statutes at
the second step of proportionality review – the appropriateness of the
means chosen. One of these cases concerned the Liquor Tax Act provision
that mandated liquor wholesale dealers to purchase at least half of their
monthly purchase quantity of soju (a type of local liquor) from producers
working in the same province as the wholesalers’ business location.20 The
court held that this provision unconstitutionally infringed the wholesalers’
occupational freedom and consumers’ freedom of choice as this mandate
was not an “appropriate means” to achieve the alleged legislative pur-
poses – regulating monopoly and guaranteeing fair competition; develop-
ing the local economy; and protecting small businesses.21

4.3 Variations and Contextualization of Proportionality

A common research question in Korean constitutional law scholarship is
how the Constitutional Court’s standard of review in rights adjudication can
be understood in a more coherent manner. The past three decades have seen
multiple variations of and deviations from the standard proportionality test,
and numerous proposals have been made by scholars to evaluate the court’s
review standards, and classifying them into three or four different
categories.22 One generally accepted observation, worth noting before

19
For further discussion on this case in the context of tradition, human rights, and
constitutional reasoning, see Yoon Jin Shin (n. 7) 264–266.
20
Constitutional Court of Korea 96Hun-Ka18 (Dec. 26, 1996).
21
Ibid.
22
See e.g. Lee Myong-Ung, “위헌여부 판단의 논증방법” [Scrutiny Level and Arguments
in Constitutional Justice], 106 저스티스 314 (2008); Chon Jong-Ik, “위헌심판의 심사기

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 proportionality in south korea 89

examining specific examples, is that the court applies varying review stan-
dards and different levels of scrutiny, depending on the type and nature of
the rights at stake or the nature of the specific areas with which legislation or
the government actions at issue are concerned. Instead of the strict propor-
tionality test, the court, in quite a few areas and cases, has applied moderate
review standards with less intensive scrutiny. In some cases, the standard
taken by the court appears to be a more relaxed version of the proportion-
ality test, while in other cases the court seems to apply a standard of
a different kind (such as a rationality test). As discussed later in this section,
these varying standards are often prefaced by a statement from the court
explaining that the areas concerned are those where the legislature has wide
discretion in the stage of lawmaking. There are also cases that demonstrate
the court’s efforts to concretize and contextualize the manner in which the
proportionality principle is applied in specific cases. The following discus-
sion will explain notable examples of these practices.
In the area of occupational freedom, the Korean Constitutional Court,
until recently, has differentiated between the freedom to choose one’s
occupation and the freedom to practice one’s occupation. It applies stricter
scrutiny with respect to restrictions on the former type of occupational
rights, while maintaining the doctrinal form of proportionality review in
both cases. This graded standard was clearly influenced by the jurispru-
dence of the German Constitutional Court established in the Pharmacy
Case.23 In the case of Massage Therapists, which was decided in 2006, the
Korean Constitutional Court reviewed the constitutionality of the law that
restricted the grant of massage therapy licenses only to visually impaired
persons.24 The majority opinion held this regulation unconstitutional for
violating the proportionality principle as it infringed the right of non-blind
persons to freely choose their occupations. Although the law had
a legitimate purpose of promoting disadvantaged persons’ employment
and protecting their livelihood, prohibiting other members of society
from pursuing their career as massage therapists was an excessive restriction
of their constitutional rights.25

준: 선거운동과 표현의 자유를 중심으로” [Standard of Judicial Review for Election

Campaign Law], 18 서울법학 243 (2010); Kim Dae-Hwan, “비례원칙의 심사강도 – 비
교법적 검토를 포함하여”[Prüfungsintensität des Grundsatzes der Verhältnismäßigkeit
einschließlich einer rechtsvergleichenden Übersicht], 18(2) 헌법학연구 301 (2012).
23
BVerfGE 7, 377 (1958).
24
Constitutional Court of Korea 2003Hun-Ma715 et al. (May 25, 2006).
25
The summary and aftermath of this case is introduced in The Constitutional Court of
Korea, Thirty Years of the Constitutional Court of Korea (The Constitutional Court of

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 90 yoon jin shin

The court has taken a more deferential approach in cases that concern
the freedom to practice one’s occupation. In such cases, the court tends to
examine whether the legislature’s specific decision is obviously mistaken,
considering the nature of the relevant policy areas for which the legis-
lature has wider discretion.26 The court oftentimes incorporates this
lenient standard into a proportionality framework by loosening the
level of scrutiny in the third step – the necessity test.27 However,
a moderate standard does not guarantee a victory for the government.
A series of decisions on “school cleanup zones” regulations illustrates
how the court’s “deferential” review standard operates in concrete cases
with regard to the freedom to practice one’s occupation. In a case con-
cerning a regulation that banned theaters and cinemas within designated
perimeters of kindergartens, elementary, middle, and high schools, and
universities, the court held that the regulation was unconstitutional
because it excessively restricted the right to practice one’s occupation,
when considering the positive aspects of watching good quality films and
plays for the cultural development of youths.28 On the other hand, the
court upheld the prohibition of karaoke venues in school zones, taking

Korea 2018) 506–509. See Constitutional Court of Korea 2006Hun-Ma1098 (Oct. 30,
2008) where the Constitutional Court upheld the legislative sequel to the original law.
26
See e.g. Constitutional Court of Korea 99Hun-Ba76 et al. (Oct. 31, 2002). In this case
regarding the compulsory designation system of medical care institutions, the
Constitutional Court held:
“Unlike the cases when the legislators enact statutes infringing on individual’s essential
freedoms (i.e. right to life, bodily freedom, freedom of selection of occupation, etc.), the
legislators have a broader legislative formative power in enacting socio-economic law. In
such case, the Court should only review whether predictive judgment or assessment of the
legislators is clearly erroneous.
The compulsory designation system may comprehensively restrict professional service
of medical doctors. However, the basic rights restricted by such system is freedom to
conduct occupations in specific manners, not freedom to choose occupations, and there is
no infringement on the essential freedom. Medical professionals provide medical service,
and the right to life and health of consumers of the medical service, the citizens, is
dependent on medical service provided by the medical care institutions. So medical
services have a very important function in our society.
In this light, judgement regarding whether it violates the minimum restriction rule to
adopt the compulsory designation system should be made by reviewing whether there is
a clear misjudgment on the part of the legislators.”
(English translation provided by the official database of the Korean Constitutional
Court at: http://search.ccourt.go.kr/ths/ep/ths_ep0101_L1.do).
27
Ibid. However, criticism has been raised against this line of reasoning, pointing out that if
one loosens the third step of proportionality review, it is not a proportionality test any
longer.
28
Constitutional Court of Korea 2003Hun-Ka1 (May 27, 2004).

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 p r o p o r t i o n a l i t y in so u t h k o r e a 91

into account such facilities’ potential harm to students.29 As for billiard

halls, the court found the prohibition unjustifiable vis-à-vis designated
zones around universities and kindergartens, while it was held to be
justified to ban those facilities around elementary, middle, and high
schools.30
The right to property is another area in which the court has shown
deviation from the standard proportionality test. One of the reasons for
adopting a more lenient review standard is found in the Constitution,
which recognizes wider legislative discretion in the area of property
rights, on account of the social functions and implications of those
rights.31 In a case ruling on the constitutionality of a civil code provision
that imposed a short statute of limitations period for tort claims, the
court skipped the third step of proportionality review and took a more
deferential stance in the last step (a narrow balancing test), holding that
“there is no imbalance between the public interest achieved and the rights
restricted that constitutes the legislature’s arbitrariness.”32
The right to equality deserves special attention. Over the years, the
Constitutional Court has established two different levels of review stan-
dards: prohibition of arbitrariness and a proportionality test in a modified
format that fits the structure of equality cases. Prior to this, the court had
applied only the prohibition of arbitrariness principle to cases concern-
ing equality rights. In such cases, the court’s review standard is typically
as follows: “The principle of equality as a review standard to be taken by
the Constitutional Court means only a prohibition of arbitrariness in
legislation. Thus the Court proclaims a violation of equality only when it
cannot find in the legislature’s decision a rational reason to justify
discrimination.”33 In 1999, the court established a new milestone by

29
Constitutional Court of Korea 98Hun-Ma480 (Jul. 22, 1999).
30
Constitutional Court of Korea 94Hun-Ma196 (Mar. 27, 1997).
31
Constitution of Korea, Art. 23, para. 2: “The exercise of property rights shall conform to
the public welfare.”
32
Constitutional Court of Korea 2004Hun-Ba90 (May 26, 2005) (emphasis added).
33
Constitutional Court of Korea 90Hun-Ma110 et al. (Jan. 16, 1997) (English translation
provided by the court database). In the court’s official English publication explaining its
review standard in the first ten years of its practice, the court states:
“Under the right of equality, equality or lack thereof is established in two steps. The
first step is to determine existence of discrimination by asking whether or not equals are
treated unequally. The second is to see whether or not such different treatment is
arbitrary. . . . Arbitrariness means the lack of reasonable cause: discrimination is not
arbitrary if it has an objective justification.” The Constitutional Court of Korea, The First
Ten Years of the Korean Constitutional Court (n. 6) 126.

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 92 yoon jin shin

explicitly adopting strict scrutiny for equality rights in the following two
situations:
[T]hose cases where the Constitution specially demands equality shall be
scrutinized under a strict standard. If the Constitution itself designates
certain standards not to be used as reason for discrimination or certain
domains in which discrimination shall not take place, it is justified to
strictly scrutinize the discrimination . . . Also, if differential treatment
causes a great burden on the related basic rights, the legislative-
formative power shall be curtailed and strictly scrutinized.34

In the above case, the court reviewed the constitutionality of the public
servant employment exam system which granted extra points to male appli-
cants who completed their military service. (It is a duty for Korean male
citizens, except for those with disabilities, to serve in the military for two years
or longer.) In this notoriously competitive employment exam, those who
served in the military automatically received 3 to 5 additional points out of
100, even when the average qualification score was about 95.5, meaning an
extra 1 or 2 points played a decisive role in the outcome of the exam. The
court decided to apply a proportionality test to conduct strict scrutiny:
The veterans’ extra point system requires a strict standard of review for both
of the two reasons. Article 32 (4) of the Constitution states, “women’s labor
is specially protected, and they are not unjustly discriminated in hiring,
wages, and conditions of employment,” specially requiring gender equality
in the domain of ‘labor’ or ‘employment’. The veterans’ extra point system
differentiates men and women in that domain. Also, it causes a great
burden on the Article 25 of the Constitution the right to hold public offices
(and on the Article 15 of the Constitution freedom to choose one’s occupa-
tion in case of the veterans’ extra point system conducted by private
businesses). The veterans’ extra point system therefore is reviewed under
strict scrutiny, which goes above the rule against arbitrariness, i.e., testing
whether there is rational basis, and means a test under the principle of
proportionality, i.e., whether there is a strict proportionality between the
means and the end of the differential treatment.35

Then the court examined the constitutionality of the extra point

system. First, it found the system’s legislative purpose legitimate –
assisting discharged soldiers to speedily reintegrate into society by
compensating them for the job opportunities they lost during military
service. Then the court examined whether the means taken to achieve

34
Constitutional Court of Korea 98Hun-Ma363 (Dec. 23, 1999) (English translation pro-
vided by the court database).
35
Ibid.

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 proportionality in south korea 93

this purpose was reasonable and proper. The court answered in the
negative, pointing out that the extra point system took into account
factors such as gender or physical conditions for military service, which
were irrelevant to the capacity to perform as public servants (thus
unreasonable), and that assistance for those who completed military
service could be provided by other measures that did not entail sacrifi-
cing the fundamental rights of women as well as men with disabilities –
the already disadvantaged groups for whom the Constitution especially
demands protection and prohibition of discrimination (thus impro-
per). Finally, the court applied the balancing test in a narrow sense,
examining whether the purpose achieved outweighed the negative
impact of discrimination. After a thorough survey of relevant data
and statistics, the court found that out of ninety-nine persons who
passed the recent public servant exam, only three managed to pass
without the help of the extra points. The automatic extra points given
were a decisive factor in the selection of applicants, while depriving
non-conscripted persons almost entirely of opportunities to serve in the
public sector and thus harming the constitutional values of gender
equality in employment and the prohibition of discrimination against
persons with disabilities. The court held that this system was unaccep-
table in its lack of a balance between legal interests, especially when
considering that the public servant exam is probably the only fair means
for women and persons with disabilities to compete for jobs, as they
suffer various disadvantages in the private sector. With this decision of
unconstitutionality, the extra points system was abolished and the
passage rate of women in the exam has dramatically increased.
Until recently, election rights cases were not subject to a strict four-
step proportionality review. In many cases, the court examined whether
the legislature had properly exercised its capacity in concretizing election
rights,36 in a manner respecting and realizing the constitutional princi-
ples in the election area – that is, universality, equality, directness, and
confidentiality of elections.37 For example, in a case concerning the
minimum age limit for voting rights, the court reviewed whether the
exclusion of minors from the eligible voting population was

36
Constitution of Korea, Art. 24: “All citizens shall have the right to vote under the
conditions as prescribed by Act.”
37
Constitution of Korea, Art. 41, para. 1 and Art. 67, para. 1. See also Art. 1, para. 2 of the
Constitution that affirms the principle of people’s sovereignty: “The sovereignty of the
Republic of Korea shall reside in the people and all state authority shall emanate from the
people.”

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 94 yoon jin shin

a reasonable exception to the constitutional principle of universality

in elections, without mentioning Article 37 paragraph 2 of the
Constitution or applying the proportionality test.38 In some cases
in which the court did maintain the formality of proportionality
review, it did not make detailed reasoning as demanded by the four-
step test, and the actual level of scrutiny applied was close to a much
more lenient rationality test.39 A notable development has occurred
with the court’s decision in 2014 on “the restriction on right to vote
of prisoners and probationers with suspended sentence.”40
Explaining the reason for applying Article 37 paragraph 2 and the
strict four-step proportionality test, the court begins with noting the
relations between democracy, universal suffrage, and statutory con-
ditions on voting:
Democracy calls for possible unity between those who have suffrage and
those under the control of state powers. The result of such demand is the
principle of universal suffrage. The principles of universal suffrage and
equal election that requires all citizens to equally participate in election are
the essential elements to realize a democratic state based on the principle
of the sovereignty of the people.
Article 24 of the Constitution takes on the form of statutory reservation
as it provides that “all citizens shall have the right to vote under the
conditions as prescribed by statute.” . . . such stipulation must conform
to the purposes and intents of Article 1 of the Constitution which declares
the popular sovereignty, Article 11 of the Constitution which speaks of the
right to equality and Article 41 and Article 67 of the Constitution which
guarantee universal, equal, direct and secret elections for presidential and
national assembly elections. Pertaining to the importance the right to vote
holds in a democratic nation as the apparatus for realizing the popular
sovereignty and democracy through representation, the legislative
branch, on the one hand, should enact laws that guarantee the right to
vote to its fullest and, on the other hand, the Constitutional Court should
apply strict scrutiny in reviewing the constitutionality of laws that restrict
the voting right.41

The decision continues:

Therefore, any legislation restrictive of the right to vote cannot be justified
directly by Article 24 of the Constitution, but can only be justified

38
See e.g. Constitutional Court of Korea 96Hun-Ma89 (Jun. 26, 1997); 95Hun-Ma224 (Dec.
27, 1995); 2000Hun-Ma92 (Oct. 25, 2001).
39
See Chon Jong-Ik (n. 22) 264–266.
40
Constitutional Court of Korea 2012Hun-Ma409 et al. (Jan. 28, 2014).
41
Ibid. (English translation provided by the court database).

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 proportionality in south korea 95
according to Article 37 Section 2 of the Constitution in exceptional and
unavoidable cases where such restriction is necessary for national security,
maintenance of law and order or for public welfare. . . . the requirements
and limits laid out in Article 37 Section 2 of the Constitution should be
abided by even more strictly when enacting legislation that restricts the
right to vote in violation of the principle of universal election.42

Based on this reasoning, the court applied a strict four-step propor-

tionality test to examine the constitutionality of the law that deprived
prison inmates and those whose imprisonment sentences had been
suspended of their voting rights. The court then held that this election
law provision infringed the complainants’ right to vote and violated the
principle of equality and the principle of universal suffrage. The court
was of the view that the legislative purpose – “to heightening the respon-
sibility of general citizens and to reinforce their respect toward the rule of
law” – was legitimate and that the restriction of the voting rights of
prisoners or probationers with suspended sentences “is one of the effec-
tive and proper measures to achieve the legislative purposes.” However,
the law did not meet the least restrictive means test as it imposed
a blanket ban on voting rights for all prisoners and probationers with
suspended sentences without considering the type and gravity of the
crimes they had committed. The court also found that the rights of the
prisoners and probationers and the value of upholding democratic elec-
tions outweighed the public interest pursued by the restriction. In this
case, the court had clearly adopted a proportionality test with substan-
tially greater “bite.”
However, there are also cases in which the Constitutional Court
applies review standards that clearly do not adhere to proportionality
test at all. An example of such a case is when the court is asked to decide
whether the state has fulfilled the duty to protect constitutional rights, for
example the duty to protect individuals from rights infringement by
third-party private actors. The different review standard adopted in this
case is called the principle of “prohibition of underprotection.”43 In the
court’s view, decisions regarding the specific ways in which this consti-
tutional duty is to be discharged is within the discretion of the legislators,
and the Constitutional Court would only find the legislature’s decision
unconstitutional in cases where “the state did not take any protective
measure despite the need for one to protect people’s life and safety or in
42
Ibid.
43
See e.g. Constitutional Court of Korea 2004Hun-Ba81 (Jul. 31, 2008); 2009Hun-Ma94
(Feb. 24, 2011).

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 96 yoon jin shin

which the measure taken by the state was entirely inadequate or evidently
insufficient for protecting legal interests.”44
Another group of cases in which the court does not apply proportion-
ality involves positive rights “to be constructed by the legislature,” as
opposed to negative rights subject to state restriction.45 In some areas of
rights, the Constitution explicitly assigns to the legislature the task to
concretize and guarantee the rights through statutes, and in such a case
the court applies a much weaker standard, called a “rationality test.”46
The court expects the legislature will decide how a right’s scope and
contents might be concretized taking into account various factors in its
discretion and knowledge. Those constitutional rights include: The right
to petition, the right to a fair trial, and the right to compensation.47
The Constitutional Court also applies a rationality review standard in
cases concerning the right to social security. An example is a case in
which the court examined the constitutionality of the Livelihood
Protection Standard, which provided livelihood welfare benefits that
were lower than the statutorily prescribed minimum cost of living.
While reaffirming every citizen’s right to a humane livelihood48 and the
44
Constitutional Court of Korea 2005Hun-Ma764 et al. (Feb. 26, 2009) (English translation
provided by the court database). This case reviewed the constitutionality of the law that
exempted drivers, with a few listed exceptions, who caused bodily injury to others from
criminal penalties if they subscribed to a general insurance plan.
45
The Constitutional Court has held that the applicability of the proportionality test
depends on whether the state action under review is an act of restricting rights or an
act of constructing rights. Constitutional Court of Korea 91Hun-Ba15 (Apr. 28, 1994).
46
See e.g. Constitutional Court of Korea 2003Hun-Ka7 (May 25, 2005); 97Hun-Ba51 (Sep.
30, 1998). See also Ha Yurl Kim, “법률에 의한 기본권의 형성과 위헌심사: 참정권과
청구권을 중심으로” [The Formation of basic rights by Legislation and judicial review:
Especially on suffrage and rights to claim], 67 고려법학 35 (2012).
47
Constitution of Korea, Art. 26, para. 1: “All citizens shall have the right to petition in
writing to any governmental agency under the conditions as prescribed by Act.”
Art. 27, para. 1: “All citizens shall have the right to be tried in conformity with the Act by
judges qualified under the Constitution and the Act.”
Art. 28: “In a case where a criminal suspect or an accused person who has been placed
under detention is not indicted as provided by Act or is acquitted by a court, he/she shall
be entitled to claim just compensation from the State under the conditions as prescribed
by Act.”
Art. 29, para. 1: “In case a person has sustained damages by an unlawful act committed
by a public official in the course of official duties, he/she may claim just compensation
from the State or public organization under the conditions as prescribed by Act. In this
case, the public official concerned shall not be immune from liabilities.” (emphases
added).
See also Constitutional Court of Korea 93Hun-Ba57 (Aug. 29, 1996).
48
Constitution of Korea, Art. 34, para. 1: “All citizens shall be entitled to a life worthy of
human beings.”

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 proportionali ty in south korea 97

state’s obligation to protect the living standards of citizens,49 the court

held that the review standard for this right, for which the legislature has
wide discretion, is whether the state has taken minimum measures as
objectively necessary to guarantee a humane livelihood: “The legislature
violates the state’s duty to protect people without economic ability and
the people’s right to a humane livelihood if the state does not legislate at
all in the area of livelihood protection or the content of the legislation is
so irrational that the state has clearly deviated from its discretion of
a constitutionally allowed extent.”50 The court adopts this “minimum
control” standard in other cases concerning social rights, including the
right to participate in the national pension plan,51 the right to
a continuation of employment,52 and the right to heathy and peaceful
environment.53

4.4 The Proportionality Principle and Political Considerations

The Korean Constitutional Court has often been criticized for being
particularly conservative in cases that invoke concerns for national
security. One such example is the case where it ruled on the constitution-
ality of the Military Service Act, which punishes, with up to two years’
imprisonment, soldiers who have consensual same-sex intercourse or
other types of sexual physical contact, regardless of time, place, and the
civilian status of the other party. This law has been challenged multiple
times and in the latest decision in 2016 the court applied the proportion-
ality test as in its previous decisions and held that this Act did not violate
the right to sexual self-determination, the right to privacy, the right to
bodily freedom, or the right to equality of the soldiers subject to criminal
punishment for same-sex relationship.54 The court first stated that the
legislative purpose of this military criminal law provision is to “establish
sound life of military community and military discipline.”55 Then it

49
Constitution of Korea, Art. 34, para. 2: “The State shall have the duty to endeavor to
promote social security and welfare.”
50
Constitutional Court of Korea 94Hun-Ma33 (May 29, 1997); 2002Hun-Ma328 (Oct. 28,
2004).
51
Constitutional Court of Korea 2000Hun-Ma390 (Apr. 26, 2001).
52
Constitutional Court of Korea 2001Hun-Ba50 (Nov. 28, 2002).
53
Constitutional Court of Korea 2006Hun-Ma711 (Jul. 31, 2008).
54
Constitutional Court of Korea 2012Hun-Ba258 (Jul. 28, 2016). Earlier decisions on the
same law provision are: 2001Hun-Ba70 (Jun. 27, 2002); 2008Hun-Ka21 (Mar. 31, 2011).
55
Constitutional Court of Korea 2012Hun-Ba258 (Jul. 28, 2016); 2008Hun-Ka21 (Mar. 31,
2011).

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 98 yoon jin shin

found that “prohibiting acts of sexual gratification between same-sex

soldiers” and “imposing imprisonment with prison labor” are appropri-
ate means for achieving this legislative purpose.56 The court continued,
“Given the security conditions and the conscription system of the
Republic of Korea, it is difficult to effectively regulate acts of indecent
conduct between same-sex soldiers through simple administrative
restrictions. Thus, the above provision does not violate the principle of
the least restrictive means.”57 At the last step of the proportionality
review (the narrow balancing test), the court said that the extent of rights
restriction that soldiers experience is not greater than the public interest
achieved, that is, “sound life of military community and military disci-
pline,” and ultimately, “national security, the premise of the nation’s
existence and the basis of all freedoms.”58 To many, this reasoning,
which follows the formula of proportionality, will not sound very per-
suasive. The concerns raised by the court reflect conservative public
mindsets in Korean society: First, concerns for (and obsession with)
national security in the context of tensions with North Korea; second,
hostility against sexual minorities, mainly propagated by conservative
protestant church communities, which exert strong political influence in
South Korea. Against this backdrop, the 2018 court decision recognizing
the right to conscientious objection to combat service is of great historical
significance,59 especially since the court overruled its previous precedent
in 2011 (which also applied the proportionality test).60
The National Security Act has been criticized regularly by the inter-
national community for its overbroad criminalization of a wide range of
speech that potentially or ostensibly exalts or benefits North Korea. The
Constitutional Court has been exceptionally generous to this law, even
issuing a peculiar form of judicial remedy. For example, while the court
has indeed recognized that the provisions under the National Security
Act61 unjustifiably violated the freedom of expression of people in South
Korea, it made a “conditional constitutionality” decision, that limited the
56
Ibid.
57
Ibid.
58
Ibid.
59
Constitutional Court of Korea 2011Hun-Ba379 et al. (Jun. 28, 2018).
60
Constitutional Court of Korea 2009Hun-Ka7 et al. (Aug. 30, 2011).
61
National Security Act (Dec. 31, 1980, No.3318), Art. 7, para. 1: “Any person who praises
or propagates the activities of an antigovernment organization, a member thereof or of
the person who has received an order from it, who acts in concert with it, or who with
other methods benefits an antigovernment organization, shall be punished by imprison-
ment for not more than seven years.”

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 proportionality in so uth korea 99

regulatory scope of the law: “as long as this provision is interpreted as

being applied only in a case in which an act concerned poses a threat to
national security or harm the liberal democratic order of the nation, it is
constitutional.”62 Since this case, the court has not invalidated any
provision of this Act.
Similarly, political considerations were at play when the court con-
fronted high-profile political cases. In the recent party dissolution deci-
sion against the Unified Progressive Party (UPP),63 a far-left party, the
predominant allegation raised by the government was that the UPP was
secretly working for the North Korean regime and was planning to
overturn the South Korean government if a war broke out between the
North and the South. Public opinion was heavily influenced by this
government allegation and by the outpouring of media reports that
appealed to and amplified longstanding public anxiety about national
security. Although the Constitutional Court applied the proportionality
test with extraordinarily detailed reasoning,64 it reached the same con-
clusion as the government and issued a dissolution order under the
justification of defending the “fundamental democratic order” of the
nation.65 In its proportionality reasoning, the court in separate sections
of its judgment emphasized the unique national security situation of
Korea, starting with section titles such as “Exceptional Situation in
Korean Society,” “Conflict between North and South Korea,” and
“Necessity to Consider Realities.”66 While quite a few scholars and
lawyers found this decision unpersuasive,67 the decision has not been

Art. 7, para. 5: “Any person who manufactures, imports, reproduces, holds, carries,
distributes, sells or acquires any documents, drawings or other expressive materials, with
the intention of committing the act as referred to in the above paragraphs, shall be
punished by the penalty as referred to in the respective paragraph.”
62
Constitutional Court of Korea 89Hun-Ka113 (Apr. 2, 1990).
63
Constitutional Court of Korea 2013Hun-Da1 (Dec. 19, 2014).
64
The court provides online a full, 429-page English translation of this decision at: http://
search.ccourt.go.kr/ths/pr/eng_pr0101_E1.do?seq=2&cname=%EC%98%81%EB%AC%
B8%ED%8C%90%EB%A1%80&eventNum=39101&eventNo=2013%ED%97%8C%EB%
8B%A41%0A&pubFlag=0&cId=010400.
65
Constitution of Korea, Art. 8, para. 4: “If the purposes or activities of a political party are
contrary to the fundamental democratic order, the Government may bring an action
against it in the Constitutional Court for its dissolution, and the political party shall be
dissolved in accordance with the decision of the Constitutional Court.” (emphasis added).
The phrase “fundamental democratic order” appears around 140 times in this
decision.
66
Ibid.
67
One justice (out of nine) of the court wrote a dissenting opinion.

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 100 yoon jin shin

publicly denounced, which in itself shows how Korean society self-

censors on national security-related issues.
In the recent impeachment case against the former president Park
Geun-hye, the Constitutional Court also applied proportionality review.
The court stated: “In order to impeach the president, the president’s
violation of law and its harm to the constitutional order should be so
grave that the gain from impeachment in defending the constitution
should be overwhelmingly greater than the national cost caused by
impeachment of the president. The extent of the president’s violation
of law should be grave enough to justify impeachment.”68 One might ask
whether the court would have unanimously removed a sitting President if
there had been no overwhelming public support for her impeachment, as
evidenced by the nationwide candlelight movement initiated by millions
of ordinary citizens over the course of several months.69
Finally, labor rights, including the right to work and the right to labor
unions, are the other areas in which the court has been widely criticized
for its conservative stance. The court’s overall position over the last three
decades was to categorize labor-related rights as social rights, which
would justify the application of a weaker review standard – whether the
impugned law has a clear deviation from the limit of legislative discre-
tion – instead of conducting a strict proportionality review.70 While the
court has increasingly paid attention to the development and mandates of
international human rights norms, it has rather bluntly disregarded
criticisms from international labor rights bodies such as the
International Labour Organization (ILO), noting in its decisions that
the ILO’s opinions have no binding force but are mere
recommendations.71 The court’s constantly passive position in the
areas of labor rights arguably reflects the history of the nation’s economic
development and its dependence on the business of large corporations or
chaebols, which has been closely connected to the government.

68
Constitutional Court of Korea 2016Hun-Na1 (Mar. 10, 2017).
69
For the backgrounds and normative implications of this impeachment case, see Yoon Jin
Shin and Mattias Kumm, ‘Impeaching Remnants of the Authoritarian Past:
A Constitutional Moment in South Korea’ (Verfassungsblog, 14 March 2017) https://
verfassungsblog.de/impeaching-remnants-of-the-authoritarian-past-a-constitutional-
moment-in-south-korea/.
70
See e.g. Constitutional Court of Korea 2009Hun-Ma408 (Jul. 28, 2011); 2014Hun-Ma367
(Mar. 31, 2016).
71
Constitutional Court of Korea 2013Hun-Ma671 (May 28, 2015).

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 proportional ity in south korea 101

4.5 Deficiencies of Proportionality Review in South Korea

As examined above, the Korean Constitutional Court has created differ-
ent review standards alongside or in lieu of the four-step proportionality
test. Concerns exist among lawyers and scholars that it is ultimately up to
the Constitutional Court to decide which review standard is applicable in
individual cases. The level of scrutiny applied by the court is a significant,
if not decisive, factor in determining whether a specific statute or state
action is upheld or invalidated. Incoherence in the selection of a review
standard without a principled theory to guide its practice would raise
suspicions that the court, at least in some cases, decides on the result first
and later chooses an applicable scrutiny level that would justify its
conclusion.72 In quite a few decisions, dissenting opinions that reached
different conclusions (usually that a statute or a state action at issue was
unconstitutional) applied a rigorous four-step proportionality test, while
the majority opinion applied a lenient standard and held that the law or
state action fell within the limits of the legislative or policymakers’
discretion.73
Overdependence on German constitutional theories and cases has
been another frequent point of criticism raised against the court’s con-
stitutional practice in South Korea. An example is social rights. The court
practice (as discussed in the previous section) and many Korean consti-
tutional law scholars take a relatively passive and minimalist approach
toward the category of positive social rights, as compared to negative
liberty rights, despite the fact that the Korean Constitution provides for
social rights in concrete terms and defines them as fundamental rights
alongside various liberty rights. Critiques point out that the passive
stance toward social rights has been affected by the early, and rather
superficial, adoption of German constitutional theories without giving
full consideration to the textual and contextual differences between the
German and South Korean constitutions.74 Backed by the general

72
See Ha Yurl (n. 46).
73
See e.g. Constitutional Court of Korea 2007Hun-Ma1083 et al. (Sep. 29, 2011).
74
See Bok-gi Kim, “사회적 기본권의 법적 성격” [The Legal Nature of Social Basic
Rights], 3(1) 사회보장법연구 111 (2014). The German Basic Law only provides for
the principle of a social state and does not stipulate social rights as basic rights.
(Basic Law for the Federal Republic of Germany Art. 20, para. 1: “The Federal
Republic of Germany is a democratic and social federal state.”) In contrast, the
South Korean Constitution provides for various social and economic rights in
detailed terms under the section of fundamental rights, including the right to
education, the right to working conditions and labor unions, the right to

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 102 yoon jin shin

authority accorded to German constitutional law in South Korea, this

acontextual understanding has influenced the Korean Constitutional
Court as well.

4.6 Conclusion
Proportionality has been central to rights adjudication throughout the
three decades of the Korean Constitutional Court’s practice. While the
specific doctrine of proportionality was adopted from German public
law, the Korean Constitution, in its text and structure, had already
implemented the core idea of proportionality as a foundational principle
for assessing the validity of legislative and executive power. As this
Chapter exemplifies, the proportionality principle has been concretized
and contextualized through its application in specific cases involving
various types of rights. The sophistication of the proportionality princi-
ple, facilitated through rights claims brought by individual rights holders
and human rights lawyers, demonstrates how the idea and practice of
proportionality can empower the individual and enrich rights dialogue
across different segments of Korean society and even beyond national
boundaries. The doctrine’s capacity to function as common grammar for
rights claims, debates, and adjudication has contributed to the develop-
ment of a rich body of comparative constitutional law scholarship around
the world. The case study of South Korea examined in this chapter
exemplifies a contextualized engagement with this cosmopolitan project.

a humane livelihood, and the right to healthy and pleasant environment

(Constitution of Korea, Arts. 31–35).

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