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The Rule of Law for Democracy 339

Otherwise, human rights enumerated in the constitution
would be nothing more than merely words on paper with no
normative power.

When a state action that is supposed to ensure the protection
of freedom and human rights does not achieve its purpose and
infringes fundamental rights guaranteed under the constitution,
we see the need for a judicial system affording protection of
fundamental rights of public and constitutional values.
Many constitutional courts around the globe including the ones
in Korea and Thailand, through many decisions, have made clear
that a state has a duty to protect individuals whose fundamental
rights were infringed, and that a state must seek to provide remedy
against infringement of their rights.
The Constitutional Court of Korea was established in
September of 1988 pursuant to the constitution wholly amended
on October 29, 1987, which aimed to further promote and nurture
democracy in Korea.

The Court was established as a result of reflection that the
Supreme Court and the Constitutional Committee, which were
initially given constitutional jurisdiction, were too passive in
exercising the jurisdiction and thus failed to fulfill their role.
The establishment of the Court in Korea is in many ways similar
to the historical background on the establishment of the Federal
Constitutional Court of Germany.
The German constitutional court was set up partially due to
remorse for failure to control massive violations of fundamental
rights by the legitimately elected regime of Nazi Germany.
Although the Constitutional Court Act that mandated the
establishment of the constitutional court in Korea had previously
come into effect in 1961, the constitution was again amended

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