In Quest of Judicial Independence for Protecting Private Property: Evidence from Constitutional Review in South Korea

Md. Miah ()

Asian Journal of Law and Economics, 2012, vol. 3, issue 1, 23

Abstract: The sanctity of private property is an essential requirement for economic prosperity of an economy. However, in some countries, the ruler who is supposed to ensure the supremacy of private property is sometimes seen expropriating private property. In this circumstance, judicial independence is vastly required to restrict grabbers from attenuating property rights. Because court plays an important role not only in interpreting the law but also bears the responsibility to ensure the rule of law. This paper first, looks for the judicial independence in South Korea through the lens of constitutional review. In relation to property rights, constitutional reviews were required if any clause in the existing laws goes subversive to private property. The paper then analyzes some widely cited cases relevant to property rights issue before and after the establishment of the Constitutional Court in Korea. The analysis shows that in the pre-democratic era the court’s activities were frequently intervened by the government and hence the court did not possess sufficient power to uphold the spirit of private property. However, in the post-democratic regime, the court has been bestowed with adequate discretion and therefore, property rights are better protected.

Keywords: property rights; judicial independence; constitutional review; regulatory takings; South Korea (search for similar items in EconPapers)
Date: 2012
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DOI: 10.1515/2154-4611.1055

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