分裂國家與分裂社會中的憲法法院: 以韓國與臺灣憲法裁判中的「防衛性民主」為例

Translated title of the contribution: The Constitutional Court in a Divided Society within a Divided Nation: The Party Dissolution Case and Militant Democracy Theory from the Korean Constitutional Court, and Their Inspirations to Taiwan

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Abstract

Taiwan and South Korea are significantly similar from comparative constitutional law’s perspective. After WWII, they both became divided nations that were under authoritarian ruling after communist revolutions, then democratization began in the 80s of the 20th Century. Both of their constitutions recognized the divided nation status, and the division is also the foundation for their divided society. Both Constitutions also clearly adopt militant democracy theory to set limits for political activities. The constitutional courts of both countries consider this issue as a civil right infringement and review relevant cases under strict scrutiny of the principle of proportionality. This article analyzes how Taiwanese and Korean constitutional courts perceive and utilize the militant democracy theory in concrete cases, and their further impacts and the meaning to the divided society and divided nation.
Translated title of the contribution The Constitutional Court in a Divided Society within a Divided Nation: The Party Dissolution Case and Militant Democracy Theory from the Korean Constitutional Court, and Their Inspirations to Taiwan
Original languageChinese (Traditional)
Number of pages30
Journal憲政時代
Volume46
Issue number1
Publication statusPublished - Jul 2020

Keywords

  • Militant Democracy
  • J.Y. Interpretation No. 644
  • Korean Constitutional Court
  • Party Dissolution

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