Pascal Bouda
email: pascal.bouda@onera.fr

Delphine Notta-Cuvier

Bertrand Langrand

Eric Markiewicz

Fabrice Pierron

Optimization of an Image-Based Experimental Setup for the Dynamic Behaviour Characterization of Materials

Keywords: Virtual Fields Method, Impact, Optimization, Viscoplasticity, Johnson-Cook

The present work aims at identifying an elastic-viscoplastic material constitutive model over a wide strain and strain-rate range (up to 0.1 and 1000 s -1 respectively), using the so-called Virtual Fields Method. To define the experimental campaign, a design process has been set. It relies on the numerical optimization of the setup -notably the specimen shape, the impact conditions and the measurement resolution (time and space) -with respects to user-defined criteria. Finally, the selected configuration ensures an accurate and robust identification.

Introduction

As optical devices are continuously being improved (notably in terms of spatial/temporal resolution and interframe rate), their combination with a full-field measurement technique is more and more suitable for high strain-rate testing. Among the available inverse methods, the Dynamic Virtual Fields Method (DVFM) enables the identification of material parameters with the sole knowledge of the strain and the acceleration fields (Eq. 28.1). In particular, the DVFM does not require the knowledge of any external loads, thus avoiding the use of an intrusive sensor (e.g. load cell).

- V σ : ε * dV W * int = V ργ .u * dV W * acc (28.1)
Inertial impact tests have been recently proposed to take advantage of the DVFM for material behaviour characterization under high strain rate [START_REF] Pierron | Beyond Hopkinson bar[END_REF]. However, the application has not concerned up to now rate-dependent material behaviour. As the latter are generally more complex and therefore requires several tests to proceed, it is necessary to explore extensively the design space of the testing procedures to improve the identification process, in particular with a reduced number of optimized tests with an efficient exploitation of the available data.

The present work aims at optimizing the aforementioned impact test to characterize the rate-dependent hardening law of a metallic material over a wide strain and strain-rate range, using the Johnson-Cook model [START_REF] Johnson | Proceedings of the 7th International Symposium on Balistics[END_REF] at room temperature (Eq. 28.2). Two criteria govern the selection of an optimized test configuration: (1) -the strain and the strain-rate range (2) -the identifiability of the parameters.

σ y = σ 0 + Kp n 1 + M ln ṗ εeq,0 (28.2)

Optimization of a Test Configuration

In this work, Finite Element Analysis (FEA) is used as a basis to assess the two selected criteria. Contrary to an approach with real tests, the numerical models enable to analyze of the test parameters influence by an iterative procedure. Thus, the viscoplastic spectrum (cumulated plastic strain, p, vs. equivalent plastic strain rate, ṗ) is plotted in a bidimensionnal histogram (Fig. 28.1) to analyze its expansion.

To take experimental biases (full-field measurement features, digitization process, camera noise, dynamic range,...) into account in the identification toolchain, virtual images are generated using a new gradient-based algorithm. This has already been addressed for other cases under quasi-static [START_REF] Rossi | Int. On the use of simulated experiments in designing tests for material characterization from full-field measurements[END_REF] and dynamic [START_REF] Lukíc | Use of simulated experiments for material characterization of brittle materials subjected to high strain rate dynamic tension[END_REF] loading but the proposed methods suffered from critical drawbacks -as the overlooking of the camera fill factor for instance -which could have jeopardized their application in ultra high-speed imaging. Finally, the simulated images are input in the DVFM toolchain by processing them with the grid method. The latter has been recently defined as a good compromise for full-field measurements with a low-resolution camera [START_REF] Grédiac | A Critical Comparison of Some Metrological Parameters Characterizing Local Digital Image Correlation and Grid Method Experimental Mechanics[END_REF].

This enhancement process notably relies on the topological optimization of the specimen inner geometry. For given impact conditions, it has to promote the development of viscoplasticity over the whole targeted spectrum. To do so, geometric singularities (e.g. holes, notches) with various parameters (e.g. position, diameter, spacing,...)aremanufactured at different locations in the specimen to enhance stress concentrations. However, this shrinking process may jeopardize the identification insofar as it decreases the specimen surface area for a given field-of-view. To restrict the optimization problem, the specimen inner geometry is driven by an evolution law for the geometric singularities. Figure 28.2 shows an example of a strain field extracted with the grid method. As a starting geometry, a circular hole was considered in the vicinity of the impact zone. Whereas the accumulation of geometric singularities may jeopardize the identification, it also strengthens the stress concentrations owing to a wider viscoplastic spectrum.

Conclusion

In this study, new tests configurations were introduced to characterize viscoplastic behaviours at high strain rate. This was based on the Dynamic Virtual Fields Method (DFVM) which is input with full-field kinematic maps (strains and

Fig. 28. 1

 1 Fig. 28.1 Example of a viscoplasticity histogram

Fig. 28. 2

 2 Fig. 28.2 Longitudinal strain extracted from simulated images with the grid method


Justine Guichard

Chapter 9 -The Spirit of Korean Law The Role of the Constitutional Court of Korea in the Transition from Authoritarian to Democratic Rule

 Yet, concentrating on these remarkable achievements of the court, while entirely justified, may not fully reveal the role the institution has assumed during South Korea's decade-long transition from authoritarian to democratic rule. Although democratization did not suffer any serious reversal in the aftermath of the 1987 regime change, 1 The Republic of Korea (ROK) was established in the south of the peninsula on August 15, 1948, while the Democratic People's Republic of Korea (DPRK) was proclaimed in the northern half on September 9, thereby solidifying the 1945 division of the country into two separate political entities. 2 The 1948 constitution (First Republic) was successively amended in 1952 (presidential election made direct), 1954 (lifting of the two-term limit for the presidency), 1960 (Second Republic), 1960 (introduction of ex post facto penalties for crimes of corruption under the previous regime), 1962 (Third Republic), 1969 (president allowed to run for a third term), 1972 (Fourth Republic), 1980 (Fifth Republic), and 1987 (Sixth Republic).

3 Tom Ginsburg, "The Constitutional Court of Korea and the Judicialization of Korean Politics," in New Courts in Asia, ed.

the process of its entrenchment has been neither smooth nor linear. Similarly, the unfolding path of the Constitutional Court of Korea has been far from either predetermined or unequivocal.

In order to understand the Constitutional Court's trajectory in its full contingency and complexity, this chapter first examines how the court was thrust into an active (rather than passive) role of sustaining the new constitutional order. The review mechanisms created by the revised constitution of 1987 and the Hŏnpŏp Chaep'anso Pŏp (Constitutional Court Act) of 1988, such as the system of direct constitutional complaints, did not necessarily ensure that the court would be capable of providing a strong and effective protection of basic rights in the postauthoritarian era. The analysis then focuses on the extent to which the court has embraced such a task. Although constitutional jurisprudence has successfully undone several repressive legacies inherited from the authoritarian era, the limits of the court's efforts also need to be critically assessed.

In particular, this chapter highlights how constitutional justice has dealt with the demands for setting bounds on the permissible uses of national security measures after the change of regime. Through this task, I argue that the court has been asked to redefine the contours of enmity, that is, to determine what counts as "national," "legitimate," and "authorized" conduct in South Korean democracy, in contrast to what is still criminalized as "antinational," "deviant," and "threatening" behavior. 5 The following pages discuss how the Constitutional Court, while eagerly protecting fundamental rights, still preserved major security measures after 1987 such as the Kukka Poanpŏp (National Security Act), the ideological conversion policy, and mandatory military service. This position of the court may seem to be one of contradiction and ambivalence. However, this does not have to be seen as a failure on the part of the Constitutional Court of Korea. Instead, this chapter asks whether legal institutions' abilities and potential to pursue political reform are inherently constrained.

Toward the 1987 Reform of the Constitution

"People are the masters of the country, and the people's will must come before everything else."6 On June 29, 1987, this dramatic acknowledgment of popular sovereignty was pronounced in a nationally televised address by an unlikely voice for political reform: General Roh Tae Woo (No T'ae-u), the handpicked successor of his comrade-in-arms, President Chun Doo Hwan (Chŏn Tu-hwan) who had been in power since 1980. Only a few weeks earlier, on June 10, Roh had been designated the candidate of the ruling Democratic Justice Party (Minju Chŏngŭidang, DJP) for the upcoming presidential race. This nomination seemed to be a de facto investiture in the presidency, as the constitution of the Fifth Republic provided for the indirect election of the president every seven years, leaving the vote to the choice of an electoral college dominated by the ruling party.

Roh Tae Woo's speech was all the more surprising because the Chun Doo Hwan regime had been brought to power by a military coup d'état in 1979 in which Roh himself participated, and the regime had firmly resisted the opposition parties' demand for constitutional reform since the mid-1980s. With the prospect of Chun's presidency terminating in 1987, the political opposition started to campaign for direct suffrage as early as 1985. Convinced that the current leadership could be defeated in the forthcoming presidential election if the voting system was altered, it continued to press for a constitutional reform while the government kept resisting. Roh's unexpected declaration was not so much a decision made willingly to restore democracy as an outcome prompted by the mass street protests that had been ignited throughout South Korea when his quasi-designation as next president was made public. It is commonly argued that a combination of factors, ranging from the very scale of the June demonstrations in which millions participated, taking the government by surprise, to the need to host successfully the Olympic Games slated for 1988 in Seoul, prevented the ruling elite from resorting to martial law and violent suppression as it had done previously. 7 The memory was still fresh of the regime, upon seizing power, brutally putting down citizen demonstrations in the city of Kwangju, resulting in the death of hundreds protesters. 8 As repression did not appear a viable option to respond to the mass rallies, now joined by middle-class citizens, Roh's June 29 speech heralded a series of major concessions, starting with promises to amend the constitution and rewrite the electoral law in order to allow for the direct and competitive election of the future president. The impact of these two promises was immediate. The political opposition instantly grasped the opportunity for change, concentrating its efforts on negotiating the revision of the constitution for which it had fought for so long.

The Making of the Constitutional Court

The amendment of the constitution took place on October 27, 1987, following negotiations between the government and the opposition. 9 The creation of a constitutional court featured prominently among the institutional changes decided by the ruling DJP and the newly formed Reunification Democratic Party (T'ongil Minjudang, RDP), dominated by the rival factions of opposition leaders Kim Young Sam (Kim Yŏng-sam) and Kim Dae Jung (Kim Taejung). Since 1945, the establishment of constitutional review has become a standard feature of transitions to democracy, in Europe and elsewhere. 10 Yet, judicial review in South Korea was not a novelty introduced by the constitution of 1987. The various previous political regimes all provided mechanisms to uphold the supremacy of the constitution. Since 1948, three different systems had been in use: the constitutional committee of the First Republic (1948-1960), Fourth Republic (1972-1980), and Fifth Republic (1980-1987); the constitutional court of the shortlived Second Republic (1960-1961); and the decentralized model embraced by the Third Republic (1962-1972) in which constitutional adjudication was carried out by ordinary tribunals under the Supreme Court of Korea (Taebŏpwŏn). Even though the machinery of constitutional review was continuously in existence under each regime, it rarely developed fully into an effective system due to the absence of separation of powers and the lack of judicial independence, the two problems that plagued all South Korean governments. [START_REF] Seong | Constitutional Jurisprudence and the Rule of Law: Revisiting the Courts in Yusin Korea (1972-1980)[END_REF] The institution conceived in Articles 111, 112, and 113 of the 1987 constitution is closely modeled on the constitutional court which was envisioned in 1960 but never had the opportunity to operate. The Constitutional Court Act was passed on April 17, 1961, a month before General Park Chung Hee (Pak Chŏng-hŭi) seized power in a coup d'état on May 16. The Second Republic was gone even before the constitutional court started operation. This "unrealized" precedent had been designed after the European continental system of constitutional adjudication, in which the power to determine the constitutionality of laws was centralized in the hands of a specialized institution separate from the rest of the judiciary. Not everyone in South Korea was then in favor of a specialized constitutional adjudicator. For example, the Korean Bar Association, consisting of former judges, pushed for the US model in which the power of constitutional review was exercised by ordinary tribunals led by a supreme court. [START_REF] Cho | Constitutional Court of Korea, Twenty Years of the Constitutional Court of Korea (Seoul: Constitutional Court of Korea[END_REF] In 1987, debates about the most appropriate form of constitutional adjudication were rekindled, and both the centralized and decentralized options were seriously considered.

According to Cho Jung-kwan's study of the constitution-making process during the summer of 1987, the ruling DJP entered the negotiations with no intent to overhaul the constitutional review system. 13 Its basic position was to ensure minimal departure from the framework of the Fifth Republic, a stance it maintained regarding other institutional changes as well. In the 1980 scheme, the constitutional adjudicator was a constitutional committee separate from the judiciary, and the DJP advocated transforming it into a constitutional court. The opposition RDP, on the other hand, defended the transfer of the power of constitutional review from the ineffective constitutional committee under the previous regime to the Supreme Court.

By the end of August 1987, the reform of the court system no longer appeared at the forefront of the talks that lasted less than a month. The prevailing political sentiment was, in the words of the opposition leader Kim Young Sam, that "since ninety percent [of the reform agenda] was already obtained by the introduction of direct presidential election, we did not need to delay the political schedule because of a mere ten percent remaining." 14 Still, the opposition's agreement with the ruling party's proposal to create a constitutional court was not a one-sided concession. In order to understand the nature of the institution that emerged in 1987, it is necessary to examine the model of the constitutional court of the democratic Second Republic, itself derived from the precedent of Germany, and the latter's influence on the new system of direct constitutional complaints.

In terms of composition and selection, the Constitutional Court of Korea that opened its doors in 1988 appeared closely fashioned after the constitutional court of 1960. It consisted of nine members, each officiating for a six-year renewable term. [START_REF]The Constitutional Court shall be composed of nine Justices qualified to be court judges, and they shall be appointed by the President[END_REF] Although all justices were formally appointed by the president of the Republic of Korea, the selection process was evenly divided between the executive, the judiciary, and the legislature, as each branch (respectively represented by the president, the chief justice of the Supreme Court, and the National Assembly) nominated three judges. 16 The president also designated the head of the Constitutional Court and the nomination had to be approved by the unicameral National Assembly. 17 A few features that complemented this original scheme should be noted. Regarding the three nominees of the National Assembly, an important informal practice developed in the early days of the Sixth Republic: one of the judges was to be chosen by the opposition, while another would be nominated as a result of an agreement between the majority and minority parties in the legislature. 18 The opposition's imprint was also visible in the determination of the jurisdiction of the Constitutional Court. Most important, the creation of a separate institution made it possible for the court to exercise power that had not existed in previous South Korean constitutional review systems: adjudicating direct constitutional complaints. Introduced to Korea for the first time in 1987, the power of the court to entertain direct petition in constitutional adjudication was well established in other countries, especially Germany. The primary purpose of constitutional complaints is to provide an extraordinary remedy to individuals who claim their fundamental rights have been violated by an exercise of state power. This mechanism is particularly relevant in post-authoritarian contexts as it is considered to enable effective protection of basic rights. The system itself is deeply associated with German constitutional justice, which is why the Constitutional Court of Korea is often said to have been modeled after the Federal Constitutional Court of Germany sitting in Karlsruhe. 19 The first element of convergence between the Korean and German courts lies in the general structure of centralized adjudication entrusted to a specialized constitutional court. This model was born in Austria in the early 1920s but was truly "popularized" after the constitutional refoundation of the Federal Republic of Germany in the aftermath of World War II. As the West German Constitutional Court emerged as one of the most successful institutions of the postwar order, it came to embody a model of rupture with its authoritarian past, imitated by many transitional societies in Europe and the rest of the world.20 Specifically, the German experience seemed to exemplify how the establishment of a new, small, and independent constitutional court could offer an efficient way to detach constitutional review from the institutions and personnel of the traditional judicial order, part of the old regime's state apparatus.

The system of constitutional complaints represents a second element of resemblance between the courts of Germany and South Korea. The creation in 1951 of a mechanism of direct constitutional petition (Verfassungsbeschwerde) was an important means to concretize further the German court's mission of protecting and promoting fundamental rights. [START_REF] Schönberger | La constitution allemande, la cour de Karlsruhe, et le 'patriotisme constitutionnel[END_REF] The right of an individual to file a constitutional complaint was originally bestowed by legislation and became incorporated in 1969 in Article 93 of the Basic Law (Grundgesetz). [START_REF] Kommers | The Constitutional Jurisprudence of the Federal Republic of Germany[END_REF] South Korea replicated the system, but the revised constitution of 1987 did not include any provisions specifying what the request mechanism would look like or how it would operate concretely, leaving the issue to be determined by legislation. The kinship between the German and Korean courts is real but should not be exaggerated. In the Korean Constitutional Court Act enacted on August 5, 1988, the design of the complaint system was accompanied by the introduction of several restrictions. It suggests that the mechanism had not necessarily been envisioned as the central vehicle for constitutional justice which it has since become.

The Contingency of Institutional Design and the Court's Uncertain Beginnings

Adjudicating constitutional complaints stands as one of the five competences of the Constitutional Court enumerated in Article 111 of the 1987 constitution. [START_REF]Competence disputes between State agencies, between State agencies and local governments, and between local governments; and 5. Constitutional complaint as prescribed by Act[END_REF] The court's four other attributions had already been recognized as subject matters for the court in 1960 and can be subsumed under three functions: controlling the conformity of laws to the text of the constitution; militating against threats to the constitutional order emanating from public officials or political parties, in which case they can be respectively impeached or dissolved; and rationalizing the legal order by avoiding conflict among different levels of government. The adjudication of constitutional complaints is most closely associated with the task of protecting fundamental rights.

The mechanisms mandated by the constitution of 1987 and elaborated in the Constitutional Court Act of 1988 did not necessarily bear the seeds of later developments. On the contrary, nothing seemed to predict that the newly established institution and its instruments would be sufficiently powerful to safeguard constitutional norms and rights in the postauthoritarian era. 24 The widespread skepticism concerning active constitutional justice derived from the Constitutional Court's authority to review the conformity of laws "upon the request" of ordinary courts only. The type of constitutional review provided in Article 111 (1) of the South Korean constitution is a posteriori or reactive, taking place once laws are enacted and in force, as opposed to an a priori, or preventive, form of control, occurring before the lawmaking process is completed. It is also a concrete or incidental mode of review in the course of a particular legal dispute, triggered by the ordinary courts, as opposed to the abstract mode of review, when the constitutional adjudicator intervenes regardless of whether a concrete case is concerned.

In the system of centralized adjudication by a special institution, ordinary courts are not empowered to engage in constitutional interpretation to the same extent as in decentralized judicial review, but their role is far from ineffective. In the incidental type of constitutional control adopted by South Korea, ordinary tribunals are in charge of deferring issues to the Constitutional Court. Consequently, they may also filter what gets to be reviewed by the Constitutional Court justices. In the South Korean post-authoritarian context, this discretionary power and the potential source of inaction on the part of regular courts raised serious concerns. The common view held that judges would remain less than enthusiastic about making requests for review, which was considered their dominant attitude under the authoritarian regimes. 25 A remedy against the possible passive obstruction of ordinary tribunals was introduced in the 1988 Constitutional Court Act. In Article 68 (2), the law ensures that a complaint can be filed directly by litigants if an ordinary tribunal declines to ask the Constitutional Court to examine the statute's validity. 26 Therefore, this mechanism offers the opportunity to bypass the ordinary tribunals to allow constitutional review to take place. The supposed disinclination by the ordinary courts relates less to the issue of their independence than to a problem of institutional rivalry. It has been pointed out that the Supreme Court and the inferior courts are not eager to cooperate with the Constitutional Court, which they fear can encroach upon their entrenched interests. 27 This sort of competition for institutional preeminence has had consequences for the effectiveness of constitutional rulings, as shown below. The procedure allowing the parties to file a constitutional petition directly with the Constitutional Court, circumventing the ordinary courts, is viewed as a unique feature in the South Korean system. 28 Yet, it is important to note that under the current framework only the judicial courts' refusal to refer a law to the constitutional adjudicator, and not the substance of their judgments, can become the subject of constitutional 24 Constitutional Court of Korea, Twenty Years, 99. 25 Ibid., 95.

26 "If the motion made under Article 41 (1) for adjudication on constitutionality of statutes is rejected [by an ordinary court], the party may file a constitutional complaint with the Constitutional Court. In this case, the party may not repeatedly move to request for adjudication on the constitutionality of statutes for the same reason in the procedure of the case concerned.

review.

The exemption of judicial decisions from constitutional review is explicitly provided in Article 68 (1) of the Constitutional Court Act: "any person who claims that his basic right which is guaranteed by the Constitution has been violated by an exercise or non exercise of governmental power may file a constitutional complaint, except the judgments of the ordinary courts, with the Constitutional Court." In other words, the rulings of ordinary tribunals cannot be construed as falling under the category of "state power" susceptible to infringe on fundamental rights, and their constitutionality may not be challenged. This exception is an important limit to the scope of direct constitutional petitions, which contrasts with the German system where judicial rulings can be a proper matter for review. 29 It has put the South Korean Constitutional Court at a disadvantage, as the Supreme Court persisted in denying the binding effect of limited constitutionality decisions. 30 In late 1997, the Constitutional Court reaffirmed the binding force of all constitutional rulings, including limited constitutionality verdicts. It reasoned that Article 68 (1) could not be interpreted as prohibiting the review of judgments of ordinary courts which continue to apply laws that had been found to be inconsistent with the constitution. 31 The provision in Article 68 (1) that "if any relief process is provided by other laws, no one may file a constitutional complaint without having exhausted all such processes" raised further doubt regarding the effectiveness of the direct petition mechanism in practice. At the other end of the spectrum, the vote of six justices (instead of five for a simple majority) is necessary to declare a law or an exercise of state power to be unconstitutional. 32 This super-majority requirement has also been identified as a potential obstacle to the Constitutional Court's capacity to act as guardian of the new order.

The structural limits of the Constitutional Court of Korea, as examined above, indicate that the independence and remarkable activities for which the court is widely acclaimed today were not guaranteed at the court's birth. The initial designs of nascent institutions do not prescribe a single particular trajectory. This dimension of uncertainty is often overlooked in the analysis of institutions, especially when their well-established authority exudes an impression of inevitability, obscuring their constructed strength and legitimacy. Such qualities are usually acquired over time through political evolution, whereas texts alone do not suffice to bequeath them. This reality has been amply shown in the experiences of the Federal Constitutional Court of Germany as well as the US Supreme Court. 33 In the South Korean case, initial doubts about the Constitutional Court were tied to a more general concern about the progress of democratization in the country. Contemporary observers stressed that the court's potential role and its independence were subject to external factors such as how the separation of powers between the executive and legislative branches would take shape. 34 The key test of democracy, defined as "a system in which parties lose elections," is the peaceful replacement of the ruling coalition. 35 In South Korea, it took a decade before the first genuine alternation of parties in power took place, as the first two presidents of the Sixth Republic, Roh Tae Woo (1988-1993) and Kim Young Sam (1993-1998), were members of the same conservative coalition. It was during Roh's presidency that the major attempt to weaken the power of the burgeoning constitutional court was made. In 1992, the Democratic Liberal Party (Minju Chayudang, DLP) proposed to limit the competence of the court to settling cases of interbranch disputes in an effort to "punish" the institution for its perceived activism. 36 This episode suggests how the Constitutional Court, only a few years after its birth, had already ignited backlash from certain political forces in reaction to the unexpected vibrancy of constitutional justice.

The Empowerment of the Constitutional Court

The Constitutional Court of Korea emerged in the context of the 1987 revision of the constitution, but those who designed the court did not necessarily intend it to play a dynamic role. The success of constitutional justice in the aftermath of the political transition, however, cannot be imputed to the court alone. Indeed, legal institutions in general, and constitutional courts in particular, can render decisions only on matters that are brought before them. The control they 33 The recognition of the German Constitutional Court as a national symbol did not take place until three decades after its creation, when the philosopher and political scientist Dolf Sternberger coined the expression "constitutional patriotism" in 1979. See Schönberger, "La constitution allemande." As for the US Supreme Court, its Marbury v. Madison decision of 1803 associated with the creation of judicial review did not instate the court in the powerful position that it occupies today. After Marbury, the institution refrained from using its self-conferred power to strike down a federal statute for more than fifty years, until the infamous Dred Scott decision of 1857 which held the Missouri Compromise of 1820 unconstitutional. 34 "As of March 1988, it is too early to pronounce the Constitution[al] Court stillborn, but it is also too early to offer an optimistic prognosis about its future guardianship of human rights. At best, the Constitution[al] Court will reflect and coordinate a separation of powers instituted through political processes. It cannot be relied upon to discharge the threshold task of overcoming South Korea's long-entrenched military-executive supremacy. In the short term, if the National Assembly elections result in an opposition majority and this majority succeeds in achieving legislative autonomy, then the Constitution[al] Court may become a very significant factor. On the other hand, if no true separation of powers can be instituted, the Court may not play a major role in protecting human rights." James West and Edward Baker, "The 1987 Constitutional Reforms in South Korea: Electoral Processes and Judicial Independence," Harvard Human Rights Yearbook 1 (1988), 165. 35 Adam Przeworski, Democracy and the Market: Political and Economic Reforms in Eastern Europe and Latin America (New York: Cambridge University Press, 1991), 10. In South Korea, opposition leader Kim Young Sam's unexpected decision to merge his party with the ruling camp in 1990 enabled him to win the following election of December 1992. This merger was responsible for much of the disillusionment surrounding the advent of formal democracy and meant that the first alternation in power only occurred when Kim Dae Jung won the presidential election of December 1997. 36 Ginsburg, Judicial Review in New Democracies, 223. According to Ginsburg, "this proposal by the ruling party was withdrawn due to strong public pressure." Ibid.

exercise is always triggered by other actors requesting the constitutional review of specific issues.

In post-1987 South Korea, the activation of constitutional justice was prompted by the strategic mobilization of human rights lawyers committed to promoting democratization by challenging "bad laws" (akpŏp), a category encompassing repressive instruments from the authoritarian era, such as the 1948 National Security Act, the 1975 Social Security Act (Sahoe Anjŏnpŏp), and the 1980 Social Protection Act (Sahoe Pohopŏp). [START_REF] Goedde | Lawyers for a Democratic Society (Minbyun): The Evolution of its Legal Mobilization Process since 1988[END_REF] One catalyst in the transformation of the country's socio-legal landscape after the regime change was Minbyun (Minju Sahoe Rŭl Wihan Pyŏnhosa Moim; Lawyers for a Democratic Society), a minority group within the closely knit legal profession founded in May 1988 by fifty-one attorneys. Out of the 2,274 individuals prosecuted under the National Security Act between June 1988 and May 1995, 1,623 were represented by Minbyun lawyers, and during this period nearly half of the cases handled by the group concerned offenses against the security legislation (43 percent of its caseload). [START_REF]As contended by another author, the birth of Minbyun "marked the beginning of a new era in the systematic activities of lawyers in Korea." Jae Won Kim, "The Ideal and the Reality of the Korean Legal Profession[END_REF] Under the pressure of Minbyun lawyers, several legacies from previous regimes have been challenged before the Constitutional Court of Korea. This triggering of constitutional justice from below has led Tom Ginsburg to note in his comparison of South Korea and Taiwan that in each country the "rights' revolution" has been the product of both the strategic mobilization of activist lawyers and the receptiveness of constitutional courts to claims challenging state power. [START_REF] Ginsburg | Law and the Liberal Transformation of the Northeast Asian Legal Complex in Korea and Taiwan[END_REF] In Korea, the possibility to file constitutional complaints against state power directly with the Constitutional Court has been instrumental in enhancing the vitality of constitutional litigation. During its first year of operations (September 1988 to September 1989), 372 cases reached the Constitutional Court of Korea, including 243 direct constitutional petitions falling under Article 68 (1) of the Constitutional Court Act. By September 1998, the total number of cases filed during the court's first ten years of operations was 4,236, including 3,281 direct petitions. This growing trend has continued. As of September 2014, 26,319 cases had been filed with the court over its twenty-six years of activity, out of which 20,651 were direct complaints. 40 Overall, almost eighty percent of the cases that reached the court were constitutional petitions against state power. By contrast, only a small percentage of cases represented challenges to the constitutionality of legislation requested by the ordinary courts. [START_REF]Quantitatively[END_REF] Between 1988 and 2014, no more than 843 cases were referred to the court through this channel, while over the same period 4,741 requests were filed by litigants under Article 68 (2) of the Constitutional Court Act to bypass the refusal of ordinary tribunals to defer statutes for review.

While the court cannot dismiss requests to review legislation originating from the ordinary courts, it can filter constitutional complaints. Half of the complaints the court received against state power between September 1988 and 2014 were dismissed by a small bench of three justices (10,982 cases), and a significant percentage of the remaining cases were later rejected or dismissed by a decision of the full bench (6,655 and 1,405 cases respectively), often due to procedural defects. 42 However, this stringent screening process does not imply that the Constitutional Court of Korea has interpreted the scope of constitutional complaints restrictively. According to Article 68 (1) of the Constitutional Court Act, direct petition can be filed by "any person who claims his basic right which is guaranteed by the Constitution has been violated by an exercise or non exercise of governmental power." As the provision does not specify what constitutes "an exercise or non exercise of governmental power," the court has the power to define this meaning. Despite initial uncertainties, and contrary to expectations, the scope of state power falling under Article 68 (1) was progressively specified, and extended, by the court.

The Constitutional Court first interpreted the category of state power to encompass legislative power, thereby allowing individuals to seek relief against statutes and treaties infringing upon their basic rights outside the course of a concrete dispute. 43 The court has consequently deduced from the mechanism of constitutional complaints the possibility of an abstract control of laws' constitutionality, an opportunity which was provided neither in the constitution of 1987 nor in the Constitutional Court Act. 44 Still, only a small percentage of petitions against state power are filed against legislative power, with about eighty percent of them against executive power. [START_REF] Yoon | Law and Democracy in South Korea[END_REF] The latter has been jurisprudentially construed as including a variety of executive or administrative decisions and behaviors, such as executive orders, administrative regulations, and ordinances, as well as state action not subject to administrative litigation. 46 In 1989, the court ruled that it could review whether a prosecutor's arbitrary decision not to indict a suspect was an unconstitutional exercise of state power. 47 Today, the majority of constitutional petitions are raised against public prosecutors' decisions to indict-and more frequently not to indict-a person suspected of a crime. Until recently, a constitutional complaint represented the "last means available to challenge prosecutors' broad discretion to indict." [START_REF] Yoon | Law and Democracy in South Korea[END_REF] Yet, a ruling of unconstitutionality by the court can only compel prosecutors to reexamine the decision of (non) indictment and cannot force them to change the decision's outcome.

A seminal case through which the court broadened the notion of state power that could be challenged through direct complaints was its 1992 decision to review whether the conduct of six agents from the Agency for National Security Planning (Kukka Anjŏn Kihoekpu, ANSP) who were present during a meeting between a suspect and his attorney was a violation of the constitution. 49 Arrested and detained in a police station for having allegedly transgressed the National Security Act, the suspect received a one-hour visit from his wife and attorney during which six agents from the ANSP not only listened to the conversation but also took notes and pictures. 50 Upon being released, he filed a constitutional complaint on the ground that the agents' behavior had infringed on his right to be assisted by counsel, which is protected by Article 12 (4) of the constitution. The court agreed. This landmark ruling sheds light on one of the fundamental arenas in which the Constitutional Court has actively intervened since its creation: clarifying the scope of the rights of criminal suspects, defendants, and convicts, and in several instances determining whether these rights also applied in national security cases. Through such issues, some of the most conspicuous legacies of authoritarianism have been called into question on the constitutional stage.

Promoting the Rule of Law through Constitutional Jurisprudence

Criminal justice represents the area in which the Constitutional Court of Korea has exerted its power most proactively. In the aftermath of the transition, the court was particularly committed to redressing the imbalance between the state's power to punish and the rights guaranteed to individuals against its discretionary exercise. The asymmetry between the two constituted a corner-stone of the repressive tactics deployed by successive South Korean authoritarian regimes. Just as a significant part of the authoritarian apparatus and the law enforcement bodies (including the powerful ANSP) survived the political transition in 1987, so did many repressive legal instruments at their disposal. 51 This continuity is prominently embodied by the 1948 National Security Act. The permanence of this law has been justified by most post-1987 governments in the name of the threat posed by the division of the Korean peninsula. Interestingly, the enforcement patterns of the National Security Act indicate that the law was more frequently and stringently implemented during the ten years following the transition than during the decade that preceded it. 52 As early as 1990, the Constitutional Court of Korea strongly condemned the excessive application of the security legislation by law enforcement agencies. The court was unanimous in denouncing their distortions of the law, in particular Article 7 sanctioning "any person who praises, encourages, sympathizes with, or benefits through other means, an antistate organization, its members, or any person under its direction." In this landmark decision, the court ruled that the vagueness of the National Security Act's language "permit[s] the law enforcement agencies to arbitrarily enforce the law, infringing freedom of speech, freedom of press, and freedom of science and arts, and ultimately violating the principle of rule of law and the principle of statutory punishment." 53 The from the majority of justices that the National Security Act must be interpreted restrictively in order to survive constitutional challenge was reflective of the court's strong commitment to impose limits on state power. Since the democratization process started, the prerogatives of law enforcement agencies therefore fell precipitously and consistently under the scrutiny of the Constitutional Court. In particular, the court focused on preventing prosecutorial abuse in the criminal process on the one hand, and restoring judges' control of prosecutors on the other hand. Several post-1987 provisions of the Criminal Procedure Code (Hyŏngsa Sosongpŏp) indeed permitted prosecutors' authority to prevail over that of judges. Before 1992, where the first instance court or the appellate court found the defendant not guilty and the prosecution appealed, the defendant could still be detained until the Supreme Court's verdict, if the prosecution had requested the death penalty, life imprisonment, or a prison sentence of at least ten years. Likewise, before 1993, prosecutors could immediately challenge the judge's decision to release the accused on bail. The Constitutional Court struck down both laws. 54 These rulings belong to a larger jurisprudential corpus testifying to the Constitutional Court of Korea's efforts to undo many of the rules and practices inherited from the previous authoritarian regimes. Other important issues dealt with by the court include the unconstitutionality of mandatory preventive confinement (1989), 55 the guarantee of the right to counsel (1992 and 2004), 56 the restriction of the authorized length of police and prosecutorial custody under the National Security Act (1992 and 1997), 57 the right to trial even for antistate crimes (1996), 58 the invalidation of the pretrial witness examination scheme, 59 the protection of the right to access criminal records (1997), 60 the incompatibility of wearing prison uniforms during investigation and trial with the presumption of innocence (1999), 61 the protection of the right to order an injunction against a security surveillance measure (2001), 62 the restriction of the permissible extent of bodily searches by the police (2002), 63 and the use of physical restraints during confinement (2003) and interrogation (2005). 64 The judgments above reveal how pervasive distortions of the "constitutional ideals" were in criminal justice after 1987. The commitment of the Constitutional Court of Korea to stop the abusive practices of law enforcement agents has been remarkable. With the coming of the twenty-first century, the court's attention extended to every corner of the criminal justice process, and the justices unanimously ruled in 2001 that the "open structure" of the lavatories in police detention facilities was incompatible with human dignity. 65 Its decisions in individual cases can be seen as part of a larger project around which a variety of interests coalesced. Indeed, building a just legal system was a common goal that could rally support within and outside the Constitutional Court. As a result, the court seized the opportunity raised by human rights lawyers, and its jurisprudence also aligned with precedents rendered by the Supreme Court of Korea during the same period. 66 Yet, the two courts' most progressive verdicts have met resistance in terms of compliance. Gerald Rosenberg has shown how, during the "criminal rights' revolution" pursued by the US Supreme Court in the 1960s, the very effectiveness of its rulings was often defeated by institutional inertia. 67 Similarly, the records of the Constitutional Court of Korea reveal that its effort to stop abuses in interrogation rooms and prison cells still was not entirely successful almost two decades after the transition, despite the official ban on torture and the inadmissibility of statements made under coercion or without the suspect being informed of his rights to remain silent and to be assisted by a lawyer. 68 In most recent cases, the constitutional control exercised by the court over abuses of state power appears to be less about the general legitimacy of a certain type of conduct or measure and more about its appropriateness in light of the particular context of a given case. This "tailored" approach was, for example, deployed in rulings involving corporeal intrusions by the police (through bodily search), public prosecutors (using physical restraints during interrogation), as 66 For instance, as early as 1990 did the Supreme Court rule on the inadmissibility of a national security suspect's statements "made while he was not allowed to consult with an attorney," thereby "curbing the police's prevalent, illegal practice of not permitting communication with counsel." Constitutional Court of Korea, Twenty Years, 505. In 1992, the Supreme Court also held that "statements elicited without informing [the suspect] of the right to silence in interrogation are illegally obtained evidence, and so should be excluded, even if they are disclosed voluntarily." Kuk Cho, "The Ongoing Reconstruction of the Korean Criminal Justice System," Santa Clara Journal of International Law 5 (2006), 102. 67 Rosenberg pessimistically concluded that the US Supreme Court was "unable to achieve its stated goals," even when the political branches did not resist them, only because "organizations, be they prison systems, police department, or lower courts, are often unwilling to change." Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change (Chicago: University of Chicago Press, 1991), 334. 68 "The easy but powerful admissibility of the protocol prepared by prosecutor, acknowledged by the Instant Provision, induces prosecutors to conduct investigations and public prosecution to particularly focus on obtaining confessions at the investigation stage, and it is highly probable that, in the actual process, they violate the Constitutional ban on torture, the right to remain silent and the defendant's right to life and bodily freedom. well as prison wardens (resorting to physical restraints in detention). 69 While the new technique has allowed the court to maintain a firm stance against law enforcement personnel and to "professionalize" its jurisprudence by adopting the proportionality reasoning pioneered by the Federal Constitutional Court of Germany, it has also resulted, paradoxically, in limiting the scope of decisions against state power.

The jurisprudence of the Constitutional Court of Korea undeniably demonstrates the institution's dedication to its mission to advance the rule of law. In pursuing this goal, however, the court has not aimed at weakening state power. Instead, its jurisprudence has sought to strengthen the legitimacy of the exercise of state power by subjecting it to the dictates of the rule of law. This dialectical process captures the relationship that binds domestic legal institutions in general, and constitutional courts in particular, to the conservation of state interests. Indeed, the task of "constitutional maintenance" in which courts engage is dualistic as it entails a commitment to preserve both the "physical" and "constitutional" integrity of the existing order. [START_REF] Finn | Constitutions in Crisis: Political Violence and the Rule of Law[END_REF] Promoting the rule of law did not necessarily imply that the Constitutional Court of Korea would construe basic rights as unlimited or unconditional. As exemplified in its decisions on the National Security Act, the ideological conversion policy, or the mandatory military service examined below, the validity of major repressive mechanisms has been ultimately upheld by the court in reference to the imperative of defending the "basic order of free democracy" (chayuminjujŏk kibonjilsŏ). 71 The court's jurisprudence therefore appears double-edged: while promoting greater procedural fairness in the exercise of state power, it has also affirmed the permissible restriction of fundamental rights such as the freedoms of expression and conscience for the purpose of protecting the constitutional order. This seemingly ambivalent position does not diminish the achievements of the Constitutional Court of Korea but it invites a more critical assessment of the court's role and its record.

Revisiting National Security Jurisprudence

Since the change of regime, challenges to the constitutionality of the National Security Act, the ideological conversion policy, the ban on conscientious objection to mandatory military service, and other security instruments inherited from the authoritarian period have been repeatedly raised before the Constitutional Court of Korea. It is commonly argued that the court has been particularly active in reforming the legacies of the authoritarian regime by bringing them into conformity with the requisites of the rule of law. 72 Yet, this assessment of the court's role appears incomplete on several accounts. First, it fails to specify the fundamental dispute at stake behind the national security issues brought before the court. This dispute has not primarily concerned undoing the lingering and anachronistic remains of the authoritarian years. Instead, the very boundaries of enmity, that is, of what counts as "national" and "antinational" in post-1987 South Korea, have been contested and redefined through these cases. Second, emphasizing the court's efforts to promote the rule of law only partially captures the way in which the institution has responded to the demand for redrawing the contours of inclusion and exclusion policed by security instruments. The intervention of the Constitutional Court of Korea in national security cases has often proven to be paradoxical, as its decisions have sought both to curb and to strengthen the devices inherited from the authoritarian era.

The National Security Act as an Instrument for Protecting the Constitutional Order

Throughout the 1990s, when arrest and imprisonment under the National Security Act remained frequent, the Constitutional Court of Korea had several occasions to review new challenges against the law. In particular, the justices were repeatedly presented with the opportunity to reexamine the constitutionality of Article 7 limiting the freedom of expression. Article 7 stipulates punishment of up to seven years of imprisonment for any expression deemed favorable to North Korea, and was historically used to imprison students and intellectuals acquainted with Marxist literature, people writing about the North Korean system even from a scientific or journalistic viewpoint, as well as anyone articulating ideas considered to belong to the ideological repertoire of the Democratic People's Republic of Korea, such as criticizing the South's capitalist structures or the presence of the US armed forced on its territory. 73 The Constitutional Court's landmark ruling on the National Security Act was delivered on April 2, 1990. At the time of this ruling, the crime of benefiting North Korea through expressive materials continued to be interpreted expansively by law enforcement agencies, as well as the ordinary courts, against individuals, such as artists, publishers, and academics, whose activities were far from endangering national security. As a result, the Constitutional Court of Korea was unanimously firm in condemning such abuse. Despite the acuteness of its criticisms, however, the court did not invalidate the provisions under review but deemed them constitutional to the extent that they were construed narrowly, that is to say, as covering and sanctioning only those expressive activities which posed a "clear threat to the integrity and the security of the nation and the basic order of free democracy." 74 On the one hand, this language forcefully demonstrated the court's intention to restrict the activities susceptible to be criminalized under Article 7 by introducing a "clear danger" test. 75 On the other hand, the court's reasoning had the effect of 73 Amnesty International, Prisoners Held for National Security Offences (AI Index: ASA 25/25/91, London: Amnesty International, 1991), 6. 74 2 KCCR 49, 89HŏnGa113, April 2, 1990, quoted in Constitutional Court of Korea, Twenty Years, 215. 75 The "clear and present danger test" was introduced in US jurisprudence by the Schenck v. United States decision of 1919. In this case, Justice Oliver Wendell Holmes famously wrote for the unanimous court that: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic... The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Interestingly, the Constitutional Court of Korea did not choose to resort to the more recent standard elaborated by the US Supreme Court in its Brandenburg v. Ohio ruling of 1968, which makes restrictions on the freedom of speech only possible in the event of an "imminent lawless action."

altering the scope of the National Security Act, converting the law into an instrument to protect not only national security but also the "basic order of free democracy." In doing so, one can argue, the Constitutional Court of Korea did more than prescribe an interpretation of the National Security Act compatible with the constitution; it construed the law as indissociable from the post-1987 constitutional order which the court had to defend.

The court subsequently admitted the presence of "remaining ambiguities" in the security legislation which was partially revised in May 1991, but it consistently reiterated the provision's validity, as long as it was conceived narrowly as punishing only those activities that posed a "clear danger" to national security or to the constitutional order. 76 On August 26, 2004, in the midst of the controversy prompted by the project of the Roh Moo Hyun (No Mu-hyŏn) administration (2003-2008) to abolish the National Security Act, the Constitutional Court confirmed the constitutionality of the law's Article 7 on the basis that it could no longer be used to suppress activities such as academic research and artistic expression which did not pose a danger to the state and the constitutional order. 77 The court accompanied its decision with a press release warning lawmakers that "it will be necessary for the National Assembly when it deals with the security law issue to reflect on public opinion and the Constitutional Court's ruling." 78

Upholding the Ideological Conversion Policy

The ideological conversion system (sasang chŏnhyang) refers to an institutional device designed to reeducate imprisoned national security offenders, assimilated to "thought criminals" whose alleged danger is supporting communism and North Korea. The notion of ideological deviance and the correlated conversion program were introduced by Japanese authorities in mid-1920s colonial Korea to suppress the domestic independence movement mostly composed of communist insurgents. [START_REF] Robinson | Cultural Nationalism in Colonial Korea[END_REF] Both were derived from Japan's experience on its metropolitan soil where a strong radical movement challenging the regime's legitimacy had developed in the 1920s. [START_REF] Mitchell | The 1948 National Security also derives from the security legislation established during the colonial era by the Japanese authorities. More specifically, it was based on the Peace Preservation Law enacted in 1925 against "radical social movements," namely socialism, communism, and anarchism, which were not only active in Japan but fueled resistance in its colonies[END_REF] In 1945, the conversion policy was abolished by the US provisional government in Japan but it was maintained in South Korea, albeit not formally. [START_REF]While US-sponsored political reforms were aimed at turning occupied[END_REF] Institutionalized in 1956, the conversion policy was specifically revived in the 1970s in order to prevent the imminent release of national security offenders whose long-term prison sentences were coming to a close. [START_REF]Presidential Truth Commission on Suspicious Deaths of the Republic of Korea, A Hard Journey to Justice: First Term Report by the Presidential Truth Commission on Suspicious Deaths of the Republic of Korea[END_REF] Those who refused to recant came to be known as "unconverted long-term prisoners" (pijŏnhyang changgisu). The ideological conversion system endured through the first decade of South Korea's transition to democracy until it was replaced with a "pledge to abide by the law" (chunbŏpsŏyakche) in July 1998. The same year, the issue of the pledge's constitutionality was brought before the Constitutional Court. 83 The constitutional issue addressed in the decision was framed as twofold: first, whether requiring inmates imprisoned for violation of the National Security Act or the Assembly and Demonstration Act (Chiphoe mit Siwi e kwan-han Pŏmnyul) to submit a pledge to abide by the national laws of the Republic of Korea before they could be considered for parole release violated the freedom of conscience guaranteed by Article 19 of the constitution; and second, whether the differential treatment introduced by the obligation that those inmates alone sign the pledge violated their right to equality. Through their respective reasoning, the majority and dissent engaged in a judgment on the history of the ideological conversion system itself: had sufficient change been introduced to legitimize its resilience after the 1987 political transition, or had excessive continuity prevailed and therefore compromised the nature of South Korea as a "free democratic society"? Seven justices answered the first question in the affirmative, upholding the validity of the pledge to abide by the law, while two dissented. 84 Despite their divergences, both the majority ruling and the minority opinion rested on the consensual premise that South Korea's conversion policy only targeted "real enemies" against which the country still ought to protect itself in the early 2000s, thereby only disagreeing over the means necessary to realize this end. An additional source of implicit convergence between them can be found in the silence reigning over the colonial genealogy of the conversion system in particular, and of South Korea's repressive apparatus in general.

Justifying the Ban on Conscientious Objection to Military Service

On August 28, 2004, the Constitutional Court of Korea delivered a ruling on the constitutionality of Article 88 (1) of the Military Service Act (Pyŏngyŏkpŏp) criminalizing the failure to enroll for active military service with no justifiable cause. 85 The verdict intervened only a few months after the unprecedented decision of the Seoul Southern District Court (Sŏul Nambe Chibang Pŏpwŏn) to acquit three Jehovah's Witnesses objecting to serving in the army. 86 As no alternative to mandatory male conscription is offered in South Korea, punishment by up to three years of imprisonment awaits those who refuse to perform the service. While a diagnosed physical or psychological disability qualifies for accomplishing non active duty service lasting from 24 to 36 months, refusal to enlist for moral or religious reasons is not recognized as an acceptable justification. Since the 1990s, the number of imprisoned conscientious objectors has been dramatically on the rise, with most of them being Jehovah's Witnesses. 87 The 2004 constitutional decision consisted of a ruling endorsed by five members, the separate concurring opinions of two justices, and the joint dissenting opinion of another pair of judges. The majority's judgment can be characterized as a deferent defense of conscientious objection, taking to heart the meaning of freedom of conscience and refusal to perform military service, while not pronouncing the latter's criminalization unconstitutional. Interestingly, however, neither the majority nor the dissent reasoned that "peaceful coexistence" between the two Koreas was an absolute precondition for the legislature to adopt an alternative service system. Moreover, no justices identified inter-Korean relations as the only factor to be taken into consideration, illustrating that the issue of conscientious objection was at least partly independent from the context of the peninsula's division and crisis situation. According to the majority, recognizing the right to conscientious objection first required vast acceptance in South Korean society "that permitting the alternative service will harm neither the realization of equality in the burden of per-forming the duty of military service nor the social utility, through the widespread understanding and tolerance of the conscientious objectors." 88 As of 2004, such consensus and tolerance were not found to exist by the majority of justices. 89 While the majority expressed its hope that South Korean society was now mature enough to tolerate "the minority of its citizens who think differently and intend to act differently," it did not envision its role as precipitating change and argued that such an initiative would not command widespread acceptance. 90 This attitude may be interpreted as a manifestation of the wider caution that the jurisprudence of the Constitutional Court of Korea has displayed in issues of societal magnitude. 91 Yet, the Constitutional Court of Korea's prudent approach does not appear purely strategic, that is, aimed at avoiding confrontation with the political branches or public opinion. Instead, its caution could reveal a fundamental apprehension toward the desirability of enhancing pluralism, which is conceived in constitutional jurisprudence as a potential threat to social cohesion.

The ambivalence with which the Constitutional Court of Korea has embraced its role as guardian of the constitution is illustrated by its national security jurisprudence, through which the instruments inherited from the authoritarian era have been both procedurally curbed and substantially strengthened. South Korea's path to transitional justice and the role played by the court further highlight some of the dilemmas the justices have faced since the change of regime.

The Ambiguous Intervention of the Court in Transitional Justice

87 "With no alternative, conscientious objectors face jail time," The Hankyoreh (English edition), February 14, 2011. The role of the Constitutional Court of Korea in the transition from authoritarian to democratic rule encompassed the issue of how to deal with past wrongdoings and wrongdoers. As seen above, political change in 1987 was triggered by mass mobilization throughout South Korea, but the transition process itself was critically handled by the ruling camp dominated by Roh Tae Woo and Chun Doo Hwan through negotiations with the opposition forces. With the victory of Roh in the first direct presidential election, it should come as no surprise that confronting abuses for which both he and Chun were themselves responsible was an uphill battle. Civil society's mobilization to put the past on trial became instrumental after Kim Young Sam won the December 1992 election, thus becoming South Korea's first civilian president in three decades. But Kim's victory marked an incomplete rupture with the previous administration. In particular, Kim resisted the idea of bringing Chun Doo Hwan and Roh Tae Woo to justice as a result of his 1990 alliance with the conservative forces. 92 In 1993, a complaint for treason against the two former presidents and other leading military officials was submitted to the Seoul District Prosecutors' Office (Sŏul Chibang Kŏmch'al Ch'ŏng) by petitioners claiming to be victims of the December 1979 coup d'état through which the junta had seized power. In line with the new administration's official position, the prosecution decided in 1994 not to indict the leaders of the coup. This decision was appealed by the petitioners to a higher prosecutors' office, where it was denied again, and the petitioners filed a complaint before the Constitutional Court of Korea on the ground that the non prosecution of the leaders of the military coup violated the victims' basic rights. Finding compelling reasons both in favor of and against prosecution, the court refused to rule that the prosecutorial decision not to indict was arbitrary. 93 Rather than ending the controversy over how to confront the past, this episode fueled the anger and fostered the determination of civic groups. In response, the Special Act on the May 18th Democratization Movement (5.18 T'ŭkpyŏlpŏp) was proposed by the Kim Young Sam administration. Enacted on December 21, 1995, this law provided that the statute of limitations period for crimes committed between December 12, 1979 (the military coup), and May 18, 1980 (the Kwangju massacre), was to start in February 1993, that is, when Kim Young Sam replaced Roh Tae Woo as president. The constitutionality of the special legislation was immediately challenged on the ground that the suspension of the limitation period from 1979 to 1993 constituted a form of ex post facto or retroactive legislation.

The Constitutional Court was split on the issue of whether ex post facto legislation could be validated. 94 On the one hand, all the justices agreed that the Special Act on May 18th would be 92 Kuk Cho, "Transitional Justice in Korea: Legally Coping with Past Wrongs After Democratization," Pacific Rim Law and Policy Journal 16 (2007), 581. 93 "Even if a successful coup makes it practically impossible to punish the perpetrators during their incumbency, they can always be punished whenever the legitimate state institutions recover their proper function and thereby regain the de facto power to punish them. However, if treasonous activities were the means to create a democratic civil state and to restore the people's sovereignty previously suppressed and excluded under a feudal autocratic regime or a dictatorship, they can be justified before or after the fact by the will of all people." 7-2 KCCR 697, 95HǒnMa221, December 15, 1995, in Constitutional Court of Korea, Twenty Years, 266-67. 94 8-1 KCCR 51, 96HŏnGa2, February 16, 1996. Before this ruling, a second direct constitutional complaint had been filed against the decision of the Seoul District Prosecutors' Office not to prosecute the persons responsible for the repression of the Kwangju rebel-lion. After the Special Bill on the May 18th Democratization Movement was introduced in the National Assembly, the complainants nonetheless withdrew the petition hanging before the Constitutional Court. constitutional if the limitation period had not expired at the time of enactment. On the other hand, a minority of four justices went as far as to declare their readiness to bend the rule of law and uphold the special legislation as constitutional regardless of retroactivity in order to satisfy the demand for substantive justice. 95 The issue of whether the statute of limitations had already expired at the time of the law's enactment was not settled by the Constitutional Court but left to be decided by the ordinary courts. Still, the constitutional ruling signaled that a supermajority of six justices (the necessary quorum for a decision of unconstitutionality) could not be gathered against the validity of the act if the ordinary tribunals were to find it retroactive.

The Korean court's approach to the issue of retroactive justice can be contrasted with the firmly legalistic stance of institutions such as the Constitutional Court of Hungary after the transition from communism or the German tribunals in the wake of reunification. In 1990, the first elected Hungarian parliament passed a law providing that the statutes of limitations for criminal offenses such as treason, voluntary manslaughter, and infliction of bodily harm resulting in death committed between 1944 and 1990 would start again on May 2, 1990, the date when the new legislature took office. The law was immediately referred by President Árpád Göncz, a former regime opponent, to the Constitutional Court. This institution was a product of the socalled Roundtable negotiations between the communist elite and the opposition, and, as a result, its members represented almost all the different political factions in the parliament. The court unanimously decided in its ruling to strike down the parliament's attempt at retroactive justice on the ground that it violated legal security, "a principle that should be guaranteed as fundamental in a constitutional rule-of-law state" according to the Hungarian Constitutional Court's language. 96 In the process of reunifying the Federal and Democratic Republics of Germany, the prohibition against retroactive legislation also took on an important, yet slightly different, dimension. The emphasis did not primarily lie on the fact that crimes for which the statutes of limitations had expired could not be prosecuted, but on the requirement that only those acts that constituted crimes under East German criminal law could be punished, a safeguard incorporated into the Unification Treaty of 1990. While this precaution was by no means a guarantee, it was made effective by German judges' "adherence to the stricture of the Basic Law" and their consequent exclusive reliance on codified East German law to settle the cases before them. In doing so, the courts contributed to construe "the forty-year history of the GDR [German Democratic Republic] in more exacting terms than those allowed by the ambiguous concept of the Unrechstaat," that is to say, East Germany envisioned as a lawless state. 97 The passage of retroactive legislation to prosecute the crimes of the former regime is always a problematic move for new democracies as it undermines the very principles upon which 95 These four justices argued that "although genuine retroactive legislation is prohibited in principle by the rule of law, it can be allowed exceptionally" when there is "a public interest overwhelmingly more important" than protecting criminals' expectation of legal certainty. Constitutional Court of Korea, Twenty Years, 269. they claim to be based, such as legal security. 98 The South Korean path to transitional justice thus illustrates some of the dilemmas the Constitutional Court has confronted in its struggle to define its role after the change of regime. Despite its indisputable achievements, the jurisprudence of the Constitutional Court of Korea has also brought ambivalent outcomes which need to be taken into account to fully understand the institution's contribution to the post-1987 order.

Conclusion: Limits to the Court's Role as Guardian of the Constitutional Order

The Constitutional Court of Korea unquestionably deserves to be celebrated for its contribution to protecting fundamental rights imposing checks on state power after the 1987 change of regime. These achievements are all the more remarkable since the new institution's capacity to play an active role appeared very uncertain at its birth. As detailed in this chapter, a number of restrictions could have heavily conditioned the scope and activation of the court's review mechanisms, including the freshly introduced system of direct constitutional complaints. These potential obstacles have not, however, prevented constitutional justice from being invested by ordinary citizens and human rights lawyers as a site for contesting the legal norms and instruments inherited from the authoritarian period, particularly in the areas of criminal justice and national security.

The picture that emerges from the court's corresponding jurisprudence is nonetheless more complex and nuanced than is commonly portrayed. The Constitutional Court of Korea's commitment to protecting the constitutional order has indeed resulted in a duality of outcomes. On the one hand, the court consistently tried to undo what it has considered as arbitrary and discretionary manifestations of state power, such as the excessive use by law enforcement agencies of national security, which has been firmly criticized by constitutional rulings. On repeated occasions, the court's jurisprudence sought to promote greater fairness in the criminal justice process and to extend the rights recognized for suspects, defendants, and convicts, even for national security offenses. On the other hand, the court tended to validate the same repressive mechanisms that its decisions have tried to control and curb. Most important, its jurisprudence has done so in the name not of preserving the safety of the state but of upholding the "basic order of free democracy."

As guardian of the latter, the Constitutional Court of Korea can be said to have been caught in a paradox: defining and defending the constitutional order when the foundations that it sets exclude certain segments of society. The court's jurisprudence illustrates how its attempts to reform multiple authoritarian legacies and to advance the rule of law have not always led to dismantling the non inclusiveness bounding South Korean democracy. In the interest of protecting it, the Constitutional Court has both procedurally restrained and substantially reinforced the contentious mechanisms supporting the post-1987 politics of enmity. Rather than a failure or missed opportunity, the South Korean court's twofold role may ultimately highlight some of the constraints that inherently limit the possibilities available to courts, as legal and state institutions, in their task of safeguarding the existing constitutional order.

  " 17-1 KCCR 558, 2003HŏnGa7, May 26, 2005 in Constitutional Court of Korea, Constitutional Court Decisions: Volume II, 2005-2008 (Seoul: Constitutional Court of Korea, 2009), 701-2.

  88 16-2(A) KCCR 141, 2002HŏnGa1, August 24, 2004, in Constitutional Court of Korea, Constitutional Court Decisions: Volume I, 1998-2004 (Seoul: Constitutional Court of Korea, 2006), 124. 89 This precedent was upheld in 23-2(A) KCCR 174, 2008HŏnGa22, August 30, 2011. 90 16-2(A) KCCR 141, 2002HŏnGa1, August 24, 2004, in Constitutional Court of Korea, Constitutional Court Decisions: Volume I, 119. 91 For instance, only in early 2015 did the court pronounce unconstitutional a 1953 law criminalizing adultery, challenged repeatedly since the 1990s. See 2009HǒnBa17, February 26, 2015 (no KCCR record number yet).

  96 Gábor Halmai and Kim Lane Scheppele, "Living Well Is the Best Revenge: The Hungarian Approach to Judging the Past," in Transitional Justice and the Rule of Law in New Democracies, ed. A. James McAdams (Notre Dame: University of Notre Dame Press, 1997), 160-61. 97 A. James McAdams, "Communism on Trial: The East German Past and the German Future," ibid., 255.

  49 4 KCCR 51, 91HŏnMa111, January 28, 1992.50 Constitutional Court of Korea, Twenty Years, 506.51 The Agency for National Security Planning replaced the Korean Central Intelligence Agency in 1981 and was renamed the National Intelligence Service in 1999. Its functions still include "investigation into the crimes of insurrection and treason under the Criminal Act, crimes of mutiny and illegal code use under the Military Criminal Act [Kukhyŏngpŏp], crimes prescribed by the Military Secret Protection Act [Kunsa Kimil Pohopŏp], and crimes provided for by the National Security Act." (Article 3 [1] of the National Intelligence Service Act [Kukka Chŏngbowŏn Pŏp]).52 The antistate organizations which the National Security Act is bound to suppress encompass groups which "claim the title of

government" (i.e. North Korea) and which aim at disrupting the state (i.e. domestic organizations). 1,529 individuals were prosecuted under the NSA between 1988 to 1992, which exceeds the 1,093 prosecutions registered from 1980 to 1986 during the Chun Doo Hwan regime. This number rose to 1,989 between 1993 and 1997 and reached 1,058 between 1998 and 2002. Article 7 corresponds to the provision of the law which has been most heavily enforced since 1987. National Human Rights Commission of Korea, Kukka poanpŏp chŏgyongsa esŏ nat'anan in'gwŏn silt'ae (Report on the situation of human rights arising from the application of the National Security Act) (Seoul: Minjuhwa Silchŏn Kajok Undong Hyobŭihoe, 2004).

Justine Guichard, Regime Transition and the Judicial Politics of Enmity: Democratic Inclusion and Exclusion in South KoreanConstitutional Justice (New York: Palgrave Macmillan, forthcoming).

"Excerpts from Speech by Seoul Party Chief," New York Times, June 30, 1987.

"Constitutional Courts," in Encyclopedia of Law & Society: American and Global Perspectives, ed. David Clark (Los Angeles: Sage Publications, 2007), 250.

The Federal Constitutional Court of Germany has, however, "emphasized its limited role in the review of the decisions of the ordinary courts, explaining that it is charged only with ensuring that constitutional standards are observed in the otherwise fully independent activities of the ordinary courts."Kommers and Miller, Constitutional Jurisprudence, 198.

Alongside the dichotomous possibility to declare a legislative provision constitutional (haphŏn) or unconstitutional (wihŏn), the court also delivers rulings of limited constitutionality (hanjŏng haphŏn) and limited unconstitutionality (hanjŏng wihŏn), as well as incompatibility with the constitution (hŏnpŏp pulhapch'i).

9-2 Honpŏp Chaep'anso Pallejip (Korean Constitutional Court Report, KCCR) 842, 96HŏnMa172, December 24, 1997. This ruling was pronounced after a complainant who was initially favored by a decision of limited constitutionality, but later sanctioned by the Supreme Court's verdict in a taxation case, filed a constitutional petition against the validity of Article 68 (1) which prevents the Constitutional Court from reviewing the judgments of the ordinary courts. In its decision, the Supreme Court had explicitly argued that "a limited constitutionality decision does not bind on the ordinary courts because the decision merely specifies the meaning and scope of application of the provision and leaves intact the statutory language." Supreme Court of Korea, 95Nu1405, April 9, 1996, quoted in Constitutional Court of Korea, Twenty Years, 533.

"The Full Bench shall make a decision on a case by the majority vote of Justices participating in the final deliberation: Provided, that a vote of six or more Justices is required in case of any of the following: 1. Decisions holding a statute unconstitutional, decisions to convict an impeached public official, decisions to dissolve a political party, or decisions to grant a constitutional complaint. 2. When the Constitutional Court overrules its earlier precedent on the interpretation and application of the Constitution or statutes" (Article 23 [2] of the Constitutional Court Act).

In the wake of the Constitutional Court of Korea's judgment, sixteen persons were arrested and prosecuted, including Chun Doo Hwan and Roh Tae Woo. The two former presidents were respectively sentenced to death and a twenty-two-and-a-half-year prison sentence in August 1996, after a four-month televised trial at the Seoul District Court. Their sentences were later commuted to life imprisonment and seventeen years of imprisonment by an appellate court, and confirmed by the Supreme Court of Korea in April 1997. Yet, on December 22 of that same year, Chun and Roh were both released after Kim Young Sam granted them a presidential pardon before he retreated from office.