Constitutional Practices and Capital - Seoul

Although the Constitutional Court decided in 2004 that the capital - Seoul was a customary constitution, the debate continues to this day. As the Constitutional Court recognized the customary constitution through the logic of common law in civil law, this article critically examines the Constitutional Court's decision through a discussion of customary law in civil law, custom as a fact, and labor practices as a manifestation of custom as a fact in labor law. Common law is established only for compulsory matters in areas where there is no compulsory law, and custom as a fact and labor practices are established only for arbitrary matters in areas where there is no law or arbitrary regulation. Since compulsory regulations are regulations on social order, and arbitrary regulations allow private autonomy independently of social order, the will of the parties is considered importantly. Common law has an equal status with law and is recognized as law. Factual customs or labor practices are not recognized as law, but if the law is viewed as a judicial norm for legal dispute resolution, it can be recognized as a subjective law claimed by the parties. Common law does not have the power to change (compulsory) law, even if it has the force of law of its own. A factual custom or labor practice may change an existing arbitrary regulation. Constitutional matters concerning the state, state institutions, and people are distinguished into essential constitutional matters which may be the subject of customary constitutional law, and arbitrary constitutional matters, which may be the subject of constitutional practice. Essential constitutional matters must be essential to the establishment and existence of the state, and must must be free (or excluded?) from arbitrariness in content and form. Matters related to the capital are not essential to the establishment and existence of the state, and whether or not to establish provisions related to the capital in the constitution is also arbitrary and therefore falls under the category of arbitrary constitutional matters. In our case, the practice of capitalizing Seoul is not a customary constitutional practice, but only a constitutional practice. Therefore, it cannot be an objective constitutional norm. It is not a norm in the same position as the positive constitution or customary constitution, and is merely a subjective norm that can be claimed by the parties in the event of a constitutional dispute. It is also a constitutional matter, but it is not stipulated in the positive constitution, so it can be revised as a law, and new customs may be formed. The very act of revising it as a law is also shaping a new constitutional practice.