The Korean legislative system consists of the Constitution as the paramount law, Acts to realize the constitutional notions, and administrative legislation including Presidential Decrees, Ordinances of the Prime Minister, Ordinances of Ministries and so forth to effectively implement the Acts. Since statutes form a certain hierarchy, subordinate statutes that are enacted under powers delegated by Acts or are enacted for the purpose of enforcing Acts, are not permitted to contain details in conflict with such Acts.
For cases on whether subordinate statutes are in conflict with Acts, which are raised in the course of enforcing such Acts, the Adjudication on the Constitutionality of Acts and the Constitutional Complaints of the Constitutional Court address on whether any Act is in violation of the Constitution. Futhermore, the Supreme Court holds the authority to make a final review on whether any order, rule, or disposition is in violation of the Constitution or Acts.
The Constitution, as the paramount law, stipulates fundamental matters pertaining to the rights and obligations of the people, fundamental structures of the Government, economic order, management of elections and such. The Constitution is the standard for the legislation and amendment of statutes of the Republic of Korea. If an Act, Presidential Decree or such is in violation of the Constitution, the Constitutional Court makes a decision on unconstitutionality of the relevant Act or Presidential Decree by referring to the provisons and preamble of the Constitution and interpreting the basic constitutional notions.
ActㆍEmergency Executive OrderㆍEmergency Financial and Economic Executive Order
Acts are the forms of legal norms stipulated by the legislative principles of the National Assembly and prescribe the principle of legality, principle of legislated taxation, requirements for acquisition of Korean nationality, expropriation and indemnity of property rights, establishment of Ministries and categories of local governments and such.
All of the rights and freedoms of the people may be restricted by Acts where it is deemed necessary to do so for the purpose of safeguarding national security and maintaining public order or public welfare, and even if such rights and freedoms are restricted, essential elements of such rights and freedoms are protected from being infringed on. Emergency executive orders and emergency financial and economic executive orders are issued by the President in the event of any national emergency. They have the effect of Acts only when the President obtains such approval from the National Assembly.
Treaty & International Law
Treaties mean agreements concluded in writing among nations while international laws mean international treaties, the enforcement power of which is generally recognized by the international community even though the Republic of Korea is not a signatory nation thereto, and include international customary laws. The Constitution of the Republic of Korea stipulates the observance of international law, and prescribes that treaties concluded and promulgated under the Constitution and international laws generally recognized have the same effect as those of domestic laws.
Where the Government concludes any treaty in conflict with domestic Acts, the Government is required to seek consent from the National Assembly. Some treaties require legislative measures for enactment as domestic Acts in order to be implemented.
Order Administrative Legislation
Orders refer to all of statutes (excluding any treaties, international laws, and municipal ordinances and rules) prescribed by administrative power. Presidential Decrees issued by the President, the head of the Executive, consists of delegated orders and execution orders. The jurisdiction of such orders extends over all administrative affairs under the jurisdiction of the Executive.
Ordinances of the Prime Minister are enacted with respect to matters under the jurisdiction of the Ministry of Public Safety and Security, the Ministry of Personnel Management, the Ministry of Government Legislation, the Ministry of Patriots and Veterans Affairs, etc. that are administrative agencies under the direct supervision of the Prime Minister among the ministries of the Executive. Ordinances of the Prime Minister are generally viewed to stand on par with Ordinances of Ministries in their hierarchy.
Administrative Rules are established by administrative agencies for the purpose of setting their internal standards for performing duties or conducting affairs.
<Table 1. Hierarchy of Acts & Subordinate Statutes>
Legislative procedures refer to a series of procedures ranging from the drafting of Bills to their promulgations. The Constitution of the Republic of Korea grants the National Assembly the power of legislation and permits the Executive branch and other agencies to exercise lawmaking powers on subordinate statutes other than Acts.
<Table 2. Legislative Process>
|1. Drafting of Bills||
A central administrative agency drafts Bills on affairs under its jurisdiction. In cases of administrative affairs under the jurisdiction of more than two Ministries, such Ministries jointly draft a bill.
|2. Consultation with Relevant Ministries, and, If Necessary, Consultation between Government and Ruling Party||
After the drafting of any Bill is completed, consultations on the details of such Bill with relevant Ministries are required. If necessary, consultations between the Government and Ruling Party or cooperation from opposition parties are to be sought.
|3. Advance Publication of Legislation||
The legislation of Bills, in advance, shall be published to reflect various opinions of the people. The period of the advance publication is not less than 20 days. If anyone who holds his/her opinion on any Bill for which advance publication is made may put forth his/her opinion. However, advance publication need not be made in special cases prescribed by Acts and subordinate Statutes.
|4. Examination of Regulations||
When any Bills include matters restricting the rights of the people or imposing obligation upon the people by the Government or local governments in order to achieve specific administrative objectives, the Regulatory Reform Committee must examine such Bills.
|5. Examination of Ministry of Government Legislation||
The Ministry of Government Legislation examines not only the formal aspects of the relevant legislative details, such as legal terms and system of legal wording, but also practical aspects, such as whether they are realistically appropriate, whether they are in conformity with the goals of state affairs, whether they are in conflict with higher Acts and subordinate statutes, and so forth.
|6. Deliberation in Vice-Ministerial Meeting||
Vice-ministerial meetings deliberate on key matters of Bills in advance to be placed on the agenda of the State Council. However, in cases of emergency, any Bill may be placed on the agenda of the State Council without going through deliberation of vice-ministerial meetings.
|7. Deliberation in State Council||
The State Council, as a top policy deliberative organ, hears proposal explanation of Bills from competent ministries and resolves after going through debates.
|8. Signature of President||
Bills resolved in the State Council and Presidential Decrees require the signature of the President after the Prime Minister and the relevant members of the State Council countersign.
|9. Submission of Bills to National Assembly||
Bills, after obtaining the signature of the President, are promptly submitted to the National Assembly by the Ministry of Government Legislation.
|10. Deliberation of Competent Standing Committees, and If Necessary, Examination of Committee of Full Members||
When any Bill is proposed or submitted to the National Assembly, the Speaker reports it to the plenary session, refers it to the competent standing committee, and, after completing the examination of the competent standing committee, places it to on the agenda of the plenary session. If necessary, any competent standing committee may examine specific Bills by comprising sub-committees. In cases of important Bills, a committee of all members may examine them.
|11. Examination of Legislation and Judiciary Committee|
|12. Deliberation and Resolution of National Assembly|
|13. Transfer of Bills to Government||
The Ministry of Government Legislation prepares a draft promulgation of a Bill resolved by the National Assembly and submits such draft to the State Council. If any objection is raised to such Bill, the President may request the National Assembly to deliberate again on the Bill by attatching an objection statement within 15 days from the day when such Bill is transferred to the Government.
|14. Deliberation of State Council and Signature of President||
Bills resolved in the State Council require the signature of the President after the Prime Minister and the relevant members of the State Council countersign.
Such Bills are promulgated by being published in the Official Gazette.