What's New index vol.2

	Korea's Public Administration and Its President

KIM Former Legislative Assistant to a Member of National Assembly

Although Korea has adopted a presidential system, its political system also encompasses some of the characteristics of a parliamentary system, making it different from the American presidential system. For example, a member of the National Assembly can, at the same time, serve as a Minister of the State. The government can also introduce a bill on the floor of the National Assembly. And, the president is elected by direct election, which is believed to secure the legitimacy of power; however a presidential term is limited to five years with no re-election. According to the balance of power principle, presidential authority, the National Assembly and the judiciary should be on a equal footing to provide a system of checks and balance. However, there are times when the President, as the head of state, can override the power of the other two branches. Simply stated, as head of state, the President has the responsibility and duty to safeguard national security, uphold the constitution and promote public social welfare. Furthermore, the President must promote both democracy the unification of Korea. The administration of the political system differs in terms of what type of structure it adopts, but as I mentioned before, Korea has adopted a presidential system with some essence of a parliamentary government. Thus, my intention in this paper is to explain Korea's executive branch and the president's power and position. Structure and Power of the Executive Branch Since the executive branch actually administers the law and policies, it has a substantial impact on public welfare. The executive branch is led by the president and it includes the Prime Minister, the State Councilors and various Ministers of State. First of all, the Prime Minister, according to the Constitution, is appointed when the President receives consent from the National Assembly. As the second highest ranking person in the government, the Prime Minister can act on behalf of the President, if the President so chooses. The Prime Minister not only supports the President but also takes direct orders from him and supervises the executive branch. If the Prime Minister is given a mandate by the law and is entrusted by a Presidential decree to do so, he can issue an Prime Minister's decree on matters within his jurisdiction. The highest body whose responsibility it is to deliberate important policy is the State Council. The State Council is composed of the President, the Prime Minister and State Councilors. Even though the State Councilors are appointed by the President, the Prime Minister can also request that a particular individual be appointed to the State Council. The Constitution stipulates that the issues noted below must always pass a State Council conference, which indicates its important role in political affairs. Additionally, like the cabinet under a parliamentary system, the Council also acts as a deliberation mechanism. Issues which are debated in the State Council conference are: 1) basic plans for state affairs and the general policies of the government; 2) a declaration of war, conclusion of peace and other important matters pertaining to foreign policy; 3) draft of amendments to the Constitution, proposals for national referendums, treaty proposals, legislative bills and proposed presidential decrees; 4) budgets, settlement of accounts, basic plans for disposal of State properties and contracts incurring financial obligation on the State; 5) emergency orders and emergency financial and economic actions or orders by the President; 6) important matters related to the military; 7) request to convene an extraordinary session of the National Assembly; 8) grants of amnesty, commutation and restoration of rights and 9) basic plans concerning delegation or allocation of powers within the executive branch. It is stipulated that the minister for each Ministry is appointed by the President from among the members of the State Council on the recommendation of the Prime Minister. Simply put, it could be said that this provision of the Constitution is designed to provide harmony and balance between the planning function, which belongs to the State Council, and the execution function, which belongs to the Executive Branch. According to the Constitution, the ministers are bound by law to manage the affairs under their jurisdiction. In addition, they may issue supplementary ordinances when they are authorized to do so by law or Presidential Decree. At the same time, they can offer their opinions on matters related to the government since they are members of the State Council, as described above. The highest organ to exercise government oversight power is the Board of Audit and Inspection. It is a constitutionally mandated institution and considered indispensable. Its decision making format follows that of council system, i.e., decision by consensus. The Board of Audit and Inspection has the power to "inspect and examine the settlement of the revenues and expenditures of the State, the accounts of the State and other organizations as specified by law and the job performance of the executive agencies and public officials" (Article 97). Every year, the Board audits revenue and expenditure settlements. The President is obligated to report these results the following year to the National Assembly. One unique feature of the oversight system lies in its organizational anomaly, in that the Board of Audit and Inspection is placed under the jurisdiction of the President, who oversees the entire operations of the Executive Branch, over which it is to exercise its oversight power, acting as an independent agency without any interference or influence from any entity in the Executive Branch, including the President. The Authority and Status of the President The President has a dual role as head of the executive branch as well as the head of state. As the head of executive branch, he has the power to oversee the executive branch. Other major powers of the President include: appointing public servants and the commander-in-chief of the armed forces and to issue Presidential decrees concerning matters delegated to him by law with the scope specifically defined and also matters necessary to enforce laws. In general, these powers are characteristic of a presidential system. The President also represents the state in foreign affairs as well as representing the people in domestic issues as the head of state. As the head of state, he has the power to represent the state. He can exercise power to conclude and ratify treaties, accredit, receive or dispatch diplomatic envoys, declare war, conclude peace and recognize another nation. To successfully deal with a state of emergency, the President is given the following extraordinary powers: to issue emergency orders, to declare state of emergency and to dissolve illegal political parties. Furthermore, the President has the power to arbitrate conflicts among the judicial, executive and legislative branch. For instance, the President has the power to convene an extraordinary National Assembly session, to appear before and indicate an opinion to the Assembly, to veto legislation and to grant a pardon. Moreover, the President also has power to propose a revision to the Constitution and to call for a referendum on vital issues concerning national security, as well as holding such symbolic powers such as the awarding of honors. Lastly, the President has the power to create constitutionally defined institutions. With the consent of the National Assembly, the President has the power to appoint the head of Supreme Court, the Prime Minister, the chairman of Board of Audit and Inspection, the president of the Constitutional Court, the justices of the Supreme Court, at the recommendation of the head of the Supreme Court, three judges of the Constitutional Court and three members of the central election management committee. Obligations of the President As the head of state, the President, beyond his individual administrative duties, exercises constitutional authority vis-a-vis foreign states. The duties of the President in Korea is to safeguard the independence, territorial integrity and continuity of the State and the constitution and to pursue peaceful unification of the homeland. According to Article 69 of the Korean Constitution, the President takes the following oath at his inauguration: "I do solemnly swear before the people that I will faithfully execute the duties of the President by observing the Constitution, defending the State, pursuing the peaceful unification of the Homeland, promoting the freedom and welfare of the people and endeavoring to develop national culture". On the other hand, to maintain precautionary checks against the power of the President, every action affecting national law must be documented and co-signed by the Prime Minister and related Ministers of State. The President can also refer certain matters to an advisory organization for an inquiry (i.e., the National Security Committee, the Democratic Peace Advisory Committee the National Science and Technology Inquiry Committee, etc.). Executive Branch Checks and Balances In the current welfare state, it is recognized that there is a tendency for the power of the executive branch to increase. So, at the same time, this would also indicate a need for controls over the executive branch in a democracy. To maintain a large organization such as the executive branch of a government, a system of checks and balances is a necessity as a tool to exercise controls over the executive branch as well as to make the administration work more effectively. However, considering the principle of the rights of the people and the mechanism of the parliamentary system, fundamental control over the executive branch should be exercised by the representative of the people. Therefore, the President, who has the ultimate responsibility over the executive branch and the National Assembly, which criticizes and restrains the President. Consequently, for the public, what is important is the fact that they elect an able and responsible National Assembly member who will represent them in controlling the administration through constructive criticism. On the other hand, there is a way for the public to directly control the administration. Exercising political rights is not limited to voting in elections and participating in political party activities. It has far wider implications, as in addition to these rights, the Constitution also bestows upon the public stronger control methods: e.g., the right to sue the government and to request a constitutional review. Reference: List of Ministries: Ministry of Construction and Transportation Ministry of Science and Technology Ministry of Education Ministry of National Defense Ministry of Labor Ministry of Agriculture and Forestry Ministry of Culture and Tourism Ministry of Justice Ministry of Health and Welfare Ministry of Commerce, Industry and Energy Ministry of Foreign Affairs and Trade Ministry of Finance and Economy Ministry of Information and Communication Ministry of National Unification Ministry of Maritime Affairs and Fisheries Ministry of Government Administration and Home Affairs Ministry of Environment.

index

What's New index vol.2

(c)1999 LEC TOKYO LEGALMIND CO.,LTD.