Circulating Ideas of Policy and Legal Decisions Processes in Korea and Germany
Edited By Eun-Jeung Lee and Hannes B. Mosler
(5) The Transplantation of the German Constitutional Provision on Political Parties in South Korea
Abstract This chapter analyzes the adoption of the Korean constitutional provision on political parties in the year 1962 as a way of exemplifying the kind of role that the transplantation of Western constitutional provisions played in the modernization of developing countries.
The German theory of the party state (Parteienstaat) has substantially influenced post-1960s Korean constitutions, in the process being extended and strengthened to such a degree that the Korean constitution of 1962 even granted political parties a monopoly on all political activity. This tendency to overemphasize the party state, although mitigated nowadays, is still well alive in certain areas of Korean law, such as those pertaining to political parties, elections, and political funding.
A critical analysis will hereinafter be conducted of how the German constitutional provision on political parties (Article 21 of the Basic Law) was transplanted1 into the Korean constitution. A mere textual comparison of Article 21 ← 91 | 92 → and the 1962 Constitution would, however, not suffice to achieve the goal of this study. In order to go beyond such a mere textual comparison, and in order to avoid being led into making hasty conclusions, it will first of all be necessary to reconsider the methodology of comparative legal studies.
Korea’s first modern constitution did not address the existence of political parties. The introduction of a constitutional provision on political parties was a response to the growing role of political parties in mass democracy. It is therefore...
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