Critical Review of Substantive Due Process of Law: Discussion on the Necessity of Substantive Due Process of Law in the Korean Constitution

Abstract

The origin of the due process of law goes back to the Constitution, and it was stipulated in the Amendments to the United States Constitution and established as a principle governing the procedural and substantive aspects of governmental actions that deprive life, liberty, and property. The substantive due process was accepted as a criterion for judicial review after the 1880s, and became the basis for invalidating various economic regulatory legislation in the Lochner era. Since the 1960s, the U.S. Supreme Court has derived several fundamental rights not enumerated in the Constitution based on the substantive due process doctrine. The due process of law was first introduced into Korean legal order during the period of the U.S. Military Government in Korea. Article 12 of the current Constitution stipulates due procedures. The Constitutional Court and mainstream theories acknowledge that the provision is an adaptation of the Anglo-American due process of law. However, opinions differ as to whether the substantive due process is necessary in the Korean Constitution. In the United States, the substantive due process is criticized as a conceptual contradiction and that the courts take the place of other institutions. Some argue that the due process of law was procedural in its history, and that fundamental rights should be derived from other constitutional provisions. It is also pointed out that there is inconsistency in the specific application of the due process principle, and that there are limitations in determining fundamental rights based on historical and traditional standards. The practical significance of the substantive due process principle cannot be overlooked. However, in order for the substantive due process principle to be recognized in the Korean Constitution, it needs to be supported by convincing arguments. Korea is a single country, has a general provision on the limit of restriction of constitutional rights, and has a detailed list of fundamental rights, leaving less room for the substantive due process to operate than the United States. However, the arguments presented from the standpoint of affirming the necessity of the substantive due process of law are insufficient. In addition, it is judged that the substantive due process of law has not established itself as an independent judicial review standard in the Korean Constitutional Court, at least until now.