자율적 헌법의 민주적 정당성

• 영문명: Democratic legitimacy of autonomous constitutions in Korea
• 발행기관: 한국헌법학회
• 저자명: 서경석(Seo Gyungseok)
• 간행물 정보: 『헌법학연구』憲法學硏究 第13卷 第3號(第1冊), 137~165쪽, 전체 30쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.09.30

영문 초록

  There have been three autonomous constitutions since 1945 : the Founding Constitution, the Third Amendment(Constitution 1960) and the Ninth Amendment(Constitution 1987). ‘Autonomous’ constitution means that it was motivated by people, not by ruling power or coup. The First Constitution was a decisive proof that ensured independence and liberty of the newly founded Republic. The Third Amendment following popular protest flared in April 1960(the April Student Revolution) represented a first step in the direction of Korea"s democratization. The present Constitution is also regarded as the product of a suprapartisan consensus in the wake of the June Democracy Movement in 1987.
  But, it remains an unsettled question whether all the autonomous constitutions had the democratic legitimacy in the progress of establishment or revision constitutions. Rather, a close look at making process of constitution will reveal that whole will was perverted in spite of full approval of necessity of a new constitution.
  The democratic legitimacy in the process of establishment or revision a constitution depends on three important factors as follows :
  ⅰ) whether a new constitution contained major agendas in those days impartially and thoroughly or not,
  ⅱ) how the members of constitution assembly was made up - the possibility of an equal representation
  ⅲ) whether the process of the establishment or revision a constitution was open and impartial or not.
  What I have tried to show in this paper is that three autonomous constitutions of Korea had serious structural flaws in point of democratic legitimacy. The First Constitution"s mission, founding of an unified autonomous nation-state, was pervert to establish a rough-and-ready anticommunist divided state. Mission of dissolving military authoritarianism was reduced to change only government forms or presidential systems. Furthermore, the whole proceeding of making constitution was conducted in secrecy, excluding the people who was at the head of struggle against Japan imperialism or authoritarian regime. Even the present Constitution, achieved through government-opposition collaboration, was revised in the direction of accommodating not whole popular wishes but vested interests of the conservative politicians.
  The first priority for effective constitutional revision in Korea is to make an end of people"s distrust of the legitimacy the constitution by adopting a fair and democratic procedure for making constitution. When the constitution is not revised in democratic manner, it is bound to be challenged, often leading to another revision.

목차

Ⅰ. 들어가며
Ⅱ. 분단반공국가 수립을 위한 필요조건으로서 건국헌법
Ⅲ. 민주주의를 호도한 보수반공주의 연장 헌법으로서 60년헌법
Ⅳ. 체제유지적 보수연대의 결과물로서 87년헌법
Ⅴ. 결론 - 민주화역량의 왜곡과 개헌의 필요조건
〈Abstract〉

키워드

자율적 헌법 건국헌법 60년헌법 87년헌법 헌법개정 헌정사 헌법정립의 정당성 autonomous constitution the Founding Constitution the Third Amendment(Constitution 1960) the Ninth Amendment(Constitution 1987) history of korean constitutions constitutional legitimacy