Abstract
Rationality is a key criterion in good legislation. Legisprudence in Korea pursues rational legislation, as well. When it comes to determining rationality, however, different philosophies based on the different cultural contexts should be considered. Rationality in the Western context may not be exactly matched with rationality in the Asian, especially in the Korean, framework where traditional Confucian ideas work as meaningful agendas. In this article, the writer tries to elucidate the difference of rationality in Korea by exemplifying the legislation of Act on Promotion of the Transportation Convenience of Mobility Disadvantaged Persons. Particularly, scientificity itself is by no means sufficient to justify the rationality of legislation in Korea. The influence of the Confucian social order in the Korean society complements and even provides an alternative understanding of the rationality of legislation, which had previously been overruled by the myth of scientificity based on the Western heritage of legisprudence.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
The Korean governmental system can be categorized into the presidential system. However, throughout the difficult period of several authoritarian regimes, such as Rhee Syngman’s of 1950s and Park Chung-hee’s of 1970s, and the following military governments of Chun Doo-hwan’s and Rho Tae-woo’s of 1980s, the Korean presidential power increased explicitly. According to Karl Loewenstein (1957), the Rhee and Park governments were called Neo-Presidentialism. Legislatures under those regimes were filled with the disarmed sycophants.
- 2.
Lee’s research reveals that the elementary legislation study began from mid-1980s, and the systematic approaches started from mid-1990s. See Lee (2006).
- 3.
See Han (2000).
- 4.
Article 79 of National Assembly Act (Proposal or Introduction of Bills)
(1) Any National Assembly member may propose a bill with the concurrence of 10 or more National Assembly members.
Article 93 of National Assembly Act (Deliberation of Bill)
In deliberating a bill, the plenary session shall hear the report on the examination from the chairperson of the committee who examined the bill, and put the bill to a vote through and interpellation and debate.
Article 99 of National Assembly Act (Permission for Speaking)
(1) When a National Assembly member desires to take the floor, he/she shall notify the Speaker in advance and obtain his/her permission.
(3) In speaking on the proceedings, its summary shall be notified in advance to the Speaker, and the Speaker shall permit immediately those matters related directly to an item on the agenda or deemed necessary to be handled urgently, and with respect to other matters, he/she shall determine the time of permission.
Article 100 of National Assembly Act (Continuation of Speaking)
No speaking of a National Assembly member shall be stopped by another National Assembly member’s speaking, and when the National Assembly member has not completed his/her speaking due to an adjournment or suspension of the session, the Speaker shall have the National Assembly member continue first his/her speaking when the proceedings are re-opened.
Article 106 of National Assembly Act (Notification of Debate)
(1) Any National Assembly member who desires to debate an item on the agenda, shall notify in advance the Speaker of his/her opposition or support thereof.
Article 109 of National Assembly Act(Quorum for Voting)
Except as otherwise prescribed in the Constitution or this Act, the proceedings shall be voted on with the attendance of a majority of all the National Assembly members on the register and by a concurrent vote of a majority of the National Assembly members present.
- 5.
Article 111 of Constitution of the Republic of Korea
(1) The Constitutional Court shall have jurisdiction over the following matters:
1. The Constitutionality of a law upon the request of the courts; 2. Impeachment; 3. Dissolution of a political party; 4. Competence disputes between State agencies, between State agencies and local governments, and between local governments; and 5. Constitutional complaint as prescribed by Act.
- 6.
In the Anglo-American Common Law system, legislative impact analysis has the similar function to legislative evaluation. The Korean style of legislative evaluation was named after the American legislative impact analysis.
- 7.
Article 7 of Framework Act on Administrative Regulations (Regulatory Impact Analysis and Independent Examination)
(1) When the head of a central administrative agency intends to establish a new regulation or reinforce existing regulations (including the extension of the effective period of regulations), he/she shall conduct a regulatory impact analysis taking account of the following matters comprehensively, and prepare a regulatory impact analysis report:
1. Necessity of establishing a new regulation or reinforcing existing regulations; 2. Feasibility of the objectives of the regulation; 3. Existence of alternative means to the regulation, or possible overlapping with existing regulations; 4. Comparative analysis on costs and benefit which is to be borne by or enjoyed by the citizens and groups subject to regulation following its implementation; 5. Whether competition-restricting factors are included; 6. Objectivity and clarity of regulation; 7. Administrative organization, human resources, and required budget following the establishment or reinforcement of regulations; 8. Whether documents required for relevant civil affairs, procedures for handling it, etc. are appropriate.
(3) The head of a central administrative agency shall determine the subject, scope, method, etc. of regulations based on the findings of the regulatory impact analysis under paragraph (1), and conduct an independent examination on the propriety thereof. In such cases, the opinions of relevant experts, etc. shall be fully reflected in the examination.
- 8.
Currently, the institutions performing legislative evaluation are National Assembly Research Service, and Korea Legislation Research Institute.
- 9.
See Choi (2006).
- 10.
Article 1 of the Act on Promotion of the Transportation Convenience of Mobility Disadvantaged Persons (Purpose):
The Purpose of this Act is to contribute to the social participation of mobility disadvantaged persons and to the promotion of the welfare thereof by constructing people-oriented transportation systems through the expansion of convenient mobility equipment by means of transportation and passenger facilities and on roads, and through the improvement of the pedestrian environment so that the mobility disadvantaged persons may travel safely and conveniently.
Article 2 of the Act on Promotion of the Transportation Convenience of Mobility Disadvantaged Persons (Definitions):
1. The term “mobility disadvantaged persons” means persons who feel inconvenience in mobility while leading a life, such as the disabled, aged, pregnant women, persons accompanied by infants, children, etc.
Article 10 of the Act on Promotion of the Transportation Convenience of Mobility Disadvantaged Persons (Installation Standards for Convenient Mobility Equipment)
(1) The kind of convenient mobility equipment to be installed in each facility subject to installation shall be proscribed by Presidential Decree considering the scale, use, etc. of such facility.
Article 12 of Presidential Decree:
The kind of convenient mobility equipment includes direction announcement, wheelchair facility, and seats reserved for the mobility disadvantaged persons, etc.
- 11.
Minutes from the 4th Construction and Transportation Committee in the National Assembly 251st Session, December 27th, 2004.
References
Choi, Chongko. 2006. Law and custom in Korean society: A historical and jurisprudential approach. SNU Law Review 47(2): 221–253.
Han, Sang-hee. 2000. Legislation studies: Our goals and directions. Legislation Studies 1: 15–45.
Hwang, Seung Heum. 2010. A study on the research history of Korean legal consciousness inquiry. Kookmin Law Review 22(2): 59–92.
Lee, Sang Young. 2006. History and perspectives of the studies on the legislation in Korea. Legislation Studies 3: 1–13.
Loewenstein, Karl. 1957. Political power and the governmental process. Chicago: University of Chicago Press.
Seung Doo Yang. 1968. Korean people’s legal consciousness. Korean Social Sciences Review 9: 65–70.
Yang, Kun. 2002. Legal culture and the rule of law in Korea. Korean Legal Philosophy Review 5(1): 185–202.
Yi, Se-Jeong, and Lee, Sang-Yoon. 2008. A research on the 2008 Korean people’s legal consciousness. Seoul: Korean Legislation Research Institute.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2013 Springer International Publishing Switzerland
About this chapter
Cite this chapter
Chang, C. (2013). Legisprudence in the Korean Context: A Practical Approach Focusing on the Confucian Effects on Rationality. In: Wintgens, L., Oliver-Lalana, A. (eds) The Rationality and Justification of Legislation. Legisprudence Library, vol 1. Springer, Heidelberg. https://doi.org/10.1007/978-3-319-00062-6_4
Download citation
DOI: https://doi.org/10.1007/978-3-319-00062-6_4
Published:
Publisher Name: Springer, Heidelberg
Print ISBN: 978-3-319-00061-9
Online ISBN: 978-3-319-00062-6
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)