지방자치단체의 헌법소원 도입방안

최성환 한양법학회 2018 漢陽法學 Vol.29 No.4

The current '1987 Constitution' introduced the Constitutional Complaint system for the first time in the constitutional history. The Constitutional Complaint, which is a subjective right remedy to apply to a special court, could be the core of the Constitutional Court if the public power violates the Constitutional rights of the subject of the Fundamental Right. However, such the Constitutional Complaint system also does not play a significant role in the area of Local Government system revitalized as the current Constitution implemented. In the case of the violation of Fundamental Right or Autonomy of Local Government, it is necessary to examine whether it can be relieved through the Constitutional litigation means of the Constitutional Complaint, whether there is a contact between the Constitutional Complaint in the Constitutional court system and the Constitutional Local Government system. The purpose of this study is to propose juridically reasonable ways in relation to the introduction of the Constitutional Complaint system of Local Government. In addition to presenting the interpretation theory of whether or not the Constitutional Complaint for Fundamental Right Remedy of Local Government is possible, this study would suggest a detailed legislative solution for the Constitutional Complaint of Autonomy Remedy of Local Government. First, this study would examine whether the Local Government incorporated in the public law is the subject of the Fundamental Right. As the German pluralism and the case of the Federal Constitutional Court in principle deny and exceptionally recognize the subjectivity of Fundamental Right of the public corporation, based on this perception, domestic theories and precedents on the subjectivity of Fundamental Right of Local Government would be analyzed. This study would criticize the case of Constitutional Court in Korea, which has a passive attitude to the recognition of Fundamental Right of Local Government, and would emphasize the resonable conclusion according to individual cases through interpretation. Next, this study would propose a concrete legislative plan for the Constitutional Complaint of Autonomy Remedy of Local Government. This study would evaluate the Constitutional Complaint of Local Government in German, which has its positive legal basis in the basic law and the federal law, and would propose the legislative introduction of this system through the amendment of the current Constitution and Constitutional Court Act in Korea. Through the review of the precedent study which would assert the introduction and would propose the legislative plan of the Constitutional Complaint of Local Government in German, in the end, this study would assert to require the amendment of Article 111 (1)(the establishment of No. 6) of the Constitution, the amendment of Article 2(the establishment of No. 6) and the establishment of Article 68-2 of the Constitutional Court Act in order to introduce the German Autonomous Complaint.

制憲憲法의 歷史的意味

이승우(Seung Woo Lee) 한국헌법학회 2012 憲法學硏究 Vol.18 No.2

Historical implications of the Constitution of Korea(1948) should be discussed upon premises evidenced by the history of the Constitutional Government; and the history of the Constitutional Government, encompassing not the history of Constitutions but rather the actual Constitutional Government in practice, should be evaluated in the perspective of the theory of State. It should be pointed out that historical implications of the Constitution of Korea(1948) are confined to the meaning of its role as the establishment of Korea. Even in the proposition that puts the legislation of the Constitution of Korea(1948) as an indication of Korea established anew, the fact that it was limited to the south of 38th parallel and not the entire peninsula raises questions. The legislation of the Constitution of Korea(1948) was an enactment of constitution that was to be applied only in the South when separate governments were already in place in the North and the South. It was a result falling short of expectations by the people who at the time hoped for a united government embracing both North and South; but at the same time, it was an unavoidable placement by the political leadership that aimed to foster liberal democracy. The legislation of the Constitution of Korea(1948) can be positively evaluated in regard to its legitimacy subject to democratic, procedural, and contextual objectives. Overall, it was laid down underpinning a universal constitutional value on sovereignty of the people through regulatory outline that comprehensively covers basic principles and fundamental institutions of constitution. Although the legitimacy of the Constitution of Korea(1948) as a whole may be undeniable as such, some measures on state structure can be seen as severely problematic. The key issue here is systematic legitimacy; the main framework of a presidential government was tampered with reckless additions of elements taken from a parliamentary government. Despite the problems involved, the Constitution of Korea(1948) became in effect and its legitimacy was acclaimed. However, it did not cease to pose confusion on the part of the Constitutional Government, mostly due to the aforementioned issue joined with actual politics in play. Constitutional norms that undermine reality have brought about a trend to make light of the constitutional norms themselves, triggering a violation of the Constitutional Government. In fact, the negative projection on the relationship between presidency and state council became a reality with the issue of acting premier, and the controversy on indirect presidential election system soon evolved into demands for constitutional amendment. Irregularities adopted in the process of framing the constitution, aggravated by the instabilities of the Constitution of Korea(1948), pushed to degrade the Constitutional Government of the First Republic into a superficial Constitutional Government.

일본의 근대입헌체제 수립과 서양체험-야마가타 아리토모의 제2차 유럽시찰을 중심으로-

방광석 ( Bang Kwangsuk ) 고려대학교 역사연구소 2017 사총 Vol.92 No.-

The discussion of the introduction of constitutional government in Japan began at the end of Tokugawa period, and became specific after Meiji Restoration. The new Meiji government tried to establish a constitutional system gradually against the nongovernmental ‘civil liberty movements’ that had developed actively in 1870s and 1980s. The national reform line was determined after it went through the conflicts among the ideas of the national system which developed in diverse ways inside and outside of the government and conservatization of the political power through ‘the political upheaval in 1881’, and the modern constitutional system was set up by the lead of the government in the latter half of 1880s. What was important in that process was the experiences of the western culture by the influential men in the Meiji government. With the opening of the national assembly and the implementation of the constitutional government ahead, there was the trend in Japan in 1880s to leave for Europe to directly learn and experience its constitutional government. This phenomenon has the form of a kind of ‘knowledge pilgrimage’ to set out in search of new information necessary for the foundation of a new nation, and its immediate reason was the investigation into a constitutional system by Ito Hirobumi from 1882 to 1883. Later, under its direct and indirect impacts, political elites continued to leave for Europe. In this paper, among the ‘knowledge pilgrimages’, Yamagata Aritomo's inspection in Europe was focused on, and the meanings of his experiences of western culture in the process of the establishment of the modern constitutional system of Japan were examined in comparison to Ito's investigation. Yamagata visited major European countries one by one during a shorter period of time compared to Ito's case, experienced the reality of constitutional government himself, and substantially investigated and inspected local and military systems. He usually visited the Ministry of Home Affairs, local government offices, police stations and others, and made inspections of military facilities, such as army academies, artillery foundries and artillery units. Yamagata's inspection and Ito's were the experiences of the western culture based on the common position of preparating the practice of the constitutional government, but their understandings of and attitudes toward the constitutional government were contrary to each other. Ito gained confidence in the implementation of the constitutional government through his inspection in Europe, became absorbed in the reformation of the national system, and led the legislation of 'Meiji Constitution' while acknowledging the differences in the political background of the western countries and Japan. On the other hand, Yamagata worried about the enforcement of the constitutional system watching the unstable domestic political situation even before his departure for Europe, and experiencing the actual condition of the constitutional government in Europe, such as France and Germany, his negative recognition of parliamentary politics and the constitutional government became more serious. Based on the outcome of these experiences of the western culture, Yamagata later coped with constitutional government consistently in a conservative and despotic position.

시간의 흐름에 따라 살펴본 한국 헌법전사

허완중 ( Heo Wan-jung ) 제주대학교 법과정책연구원 2021 法과 政策 Vol.27 No.3

Compared to the western constitutional history, it is difficult to say that the 150-year history of Korean constitution is long. However, the history of the Korean constitution is more compact and more dramatic than any other country's constitutional history. Various cases that can be seen in the history of the Western constitution can be easily found in the history of the Korean constitution. In particular, the constitutional pre-history, which can be seen from 1863 to 1919, created a unique constitutional history that accepted Western constitutional theory and practiced it. The history of the Korean constitution begins when the old system of sedo politics is liquidated with the support of the people who have recognized them as people. Of course, the history of the Korean constitution in earnest begins on July 17, 1948, when the constitution of the Republic of Korea is promulgated. However, In the preamble of the constitution, it is clearly stated that it inherits the legal authenticity of the Korean Provisional Government, and the constitution in the modern meaning of guaranteeing basic rights and separation of powers as essential elements begins with the constitution of the Korean Provisional Government. Accordingly, it can be seen as Korean Pre-Constitutional History from the enthronement of King Gojong to the promulgation of the Korean Provisional Government constitution. Pre- Constitutional History refers to the process of making the Korean Provisional Government constitution, which is a constitution in the modern meaning that guarantees basic rights and separation of powers as essential elements. Just as there was confusion between the monarchy and the republic until France became a fully modern constitutional state after the French Revolution, between the monarchy and the republic until the promulgation of the Provisional Charter of the Korean Provisional Government starting with Article 1 declaring that Korea is a democratic republic after Gojong became king. First, starting from the retro-style conservative reform of the reinforcement of the kingship of Heungseondaewon-gun, the Gapsinjeongbyeon, a downward reform of the radical enlightenment group, and the Donghak Peasant Revolution, a realistic upward reform centered on farmers, followed by the Gabo reform of the moderate enlightenment group under Japanese influence. However, all of these reforms failed and reflected on it, followed by a moderate and gradual reform of vertical cooperation through dialogue and discussions of the Independence Association and the Manmin Joint Conference. However, Gojong’s conservative reaction took place, and the Gwangmu Reform, a selfish conservative reform without the people, was promoted. However, reforms without the people’s support were forced to fail, and the Korean Empire became strong in Japan and its government was destroyed. Accordingly, an attempt to establish an exile government based on monarchism and an attempt to establish a provisional government based on republicanism are promoted, respectively. This attempt bears fruit with the establishment of the Korean Provisional Government, an exile government based on republicanism with the March 1 Declaration of Independence. And, with the Korean Provisional Government enacting the Provisional Charter of the Republic of Korea, the first constitution in the modern sense, the Korean constitution history begins in earnest.

지방자치 기반강화를 위한 헌법개정

이기우 한국지방자치학회 2005 한국지방자치학회보 Vol.17 No.4

Korean Constitution have only two Articles for local self-government. The constitutional text of the local government-related Article is very simple and provides few directions for lawmaker. The constitutional Guaranty for the local self-government is not sufficient. Constitutional Reform is required to strengten local self-government. In this Article are made some suggestions for constitutional reform in order to guarantee and strengthen local self-government. First, arts of local government shall be fixed in the text of constitution like some other states as Germany and Spain. second, functions of local government shall be fixed on the text of constitution. The principle of subsidiary plays very important role for the distribution of public affairs between central government and local government. Third, the power of local government shall be strengthen within the limits of law. The power of financial self-government shall be constitutionally guaranteed for the local government. Fourth, the position of residents shall be prescribed by constitution as sovereign in the area of local authority. The residents are the source of legitimacy for the power of local government. Fifth, organizations of local administration and council shall be determined with local ordinance, as far as it is not against law of the state. Sixth, the constitution shall have codes for exceptional case on Je Ju. The draft of constitutional reform is suggested in this article.

헌법적 문제로서 한국 정부조달제도의 몇 가지 이슈

김진기 한국법학원 2019 저스티스 Vol.- No.170-3

There are not many domestic papers that discuss government procurement from the Constitutional perspective. It is because the judicial branch views government procurement regulations as internal regulations. Therefore it retains an administrative practice of viewing government procurement contracts as an area of private autonomy, which results in a lack of interest on constitutional implications of government procurement. However, the field of government procurement is an area that often experiences direct political intervention and policy changes. More specifically, if the constitutional law is the supreme law regarding fundamental rights, the government procurement law is a materialized form of the Constitution. In addition, taking into consideration of how human rights developed from the first generation into second and third generation human rights, the issue of how government procurement relates to the Korean Constitution should not be neglected. There are many constitutional issues to discuss regarding government procurement. This paper will first discuss an overview of the origin and assessment on why special attention should be given to the constitutional implications regarding government procurement. Next, this paper will discuss in detailed perspective of three constitutional issues. First, the issue of the reunification of Korean Peninsula. Peaceful reunification is a national task prescribed by the Constitution. Therefore, the process of reunification and the cost incurred after reunification should, in general, be appropriated through the government procurement system. This should be the general principle. This paper will review the example of legal issues that arose with operating the Kaesung Industrial Complex, which was a symbol of specialized effort in the course toward a reunification attempt, were resolved using government procurement law. Second, there is a need to establish a connection between international government procurement law and the Korean government procurement law, specifically regarding the issue of resolving conflicts. Therefore, if proper preparations are not taken, a confusion may arise within domestic legislations when international trade agreements are directly ratified, which gives rise to a need for protection against the principle of national treatment within specific fields. Finally, this paper will assess how the Korean government procurement has inevitably strayed from constitutionalism as a result of a lack of theoretical system on government procurement by reviewing specific and landmark cases, though they may be a bit partial. However, this is a result of the lack of legislative competence regarding the topic of government procurement. In conclusion, this paper will organize the ways in which the Constitution and government procurement law interconnect. Through this process, this paper presents consitutional law issues that may arise within government procurement law. In addition, this paper presents four ares where additional research is required regarding constitutional law and government procurement law. First, government procurement law regarding the ROK-US Special Measures Agreement; second, setting a lawful standard on a resistant cartel against the government's monopoly on demand; third, emphasizing the government procurement law approach on privatized or quasi-privatized industries such as electricity, energy, railroads, and roads; fourth, systematizing government procurement by developing the PFI standard of private investment law to the international PPP standard. 헌법적 관점에서 정부조달분야를 직접 거론한 국내 논문은 많지 않다. 법원이 정부조달법규를 행정부 내부규정으로 간주하고, 정부조달계약 분야를 사적자치가 지배하는 분야로 이해하는 실무관행에 비추어 보면 정부조달 분야에 대한 헌법적 무관심은 오히려 당연하다. 하지만, 정부조달 분야는 정치와 정책이 직접 개입하는 분야이다. 헌법을 오롯이 기본권보장의 최고규범이라는 데 동의한다면 정부조달 분야는 오히려 헌법이 가장 관심 가져야 할 헌법구체화 법분야이다. 특히 기본권과 관련하여 1세대 인권에서 2세대, 3세대 인권으로 발전되어 온 인권법 발전 역사를 감안하면 한국 헌법은 결코 이 분야를 도외시 할 수 없다. 그러므로 정부조달 분야에서 헌법적 문제로 다루어야 하는 이슈는 대단히 많다. 이 논문에서는 먼저 총론적 관점으로 정부조달의 연원과 평가를 통해 왜 헌법이 정부조달 분야에 대한 특별한 관심을 가져야 하는지를 검토하였다. 그 다음으로 각론적 관점으로 특별히 세 가지 헌법적 이슈를 검토하였다. 처음으로, 남북한 통일의 문제다. 평화통일은 헌법이 규정한 국가적 과제이다. 그러므로 통일과정과 통일 후의 통일비용은 대체로 정부조달시스템으로 사용되어야 한다. 이것이 원칙이어야 한다. 그런 맥락에서 통일과정의 특수문제인 개성공단 가동과 관련한 법적 이슈도 정부조달법으로 치환하여 해결해 볼 수 있었다. 다음으로, 국제정부조달법과 한국정부조달법의 관계 설정이 필요하였고, 충돌에 관한 해결방법을 강구하여야 했다. 준비 장치 없이 국제통상조약의 직접효력을 인정함으로써 야기되는 국내 법률관계의 혼란을 제시하였고, 국제통상조약의 내국민원칙 준수로 일정 분야는 오히려 逆내국민원칙이라는 새로운 패러다임이 필요함을 강조하였다. 마지막으로, 정부조달 분야의 이론적 체계 불비에 따라 불가피하게 법치주의와 멀어진 한국정부조달의 현상을 진단하였고, 이 분야 대표적 판례를 의도적으로 편파적으로(?) 검토하였음을 고백한다. 하지만, 법을 법이라고 하지 못하는 홍길동법(?) 상황에서 국회가 제정한 법률에 최소한의 Otto Meyer식 법규창조력조차 인정하지 않는 실무례를 비판하지 않을 수 없었다. 결론으로, 헌법과 정부조달법이 어느 지점에서 만나 어떤 내용으로 어떻게 대화하여야 할지를 정리해 보았다. 이로써 간단하게나마 헌법적 문제로서 한국정부조달 분야의 몇 가지 이슈를 제기하였다. 보론으로 헌법과 정부조달법이 계속 대화가 필요한 네 분야를 제시하며 추가연구의 필요성을 제시하였다. 첫째, 한미 방위비분담 협정의 정부조달법적 관심 둘째, 정부의 독과점 수요자 지위에 대응하는 대항카르텔의 합법성 검토기준 설정 셋째, 민영화 혹은 준민영화 된 전기, 에너지, 철도, 도로 등 분야의 정부조달법적 접근 강조 넷째, 민간투자법의 PFI 수준을 국제적 수준의 PPP로 발전시켜 정부조달을 체계화, 글로벌화 하는 것이다.

현행헌법상 정부형태의 의원내각제적 요소에 대한 검토

정만희(Jeong Man-Hee) 동아대학교 법학연구소 2009 東亞法學 Vol.- No.44

Except for a short period for the Second Republic under the parliamentary government, the Korean Constitution has primarily taken the form of presidentialism since its adoption in 1948. However, the government structure under the Constitution has had such a significant amount of parliamentary elements that it could be labeled as a mixture of both constitutional systems. Such a hybrid form of governments since its original adoption of the Constitution was simply a coincidental product of compromises between conflicting political groups and their interests, not based upon a reasonable resolution of necessary debates and studies. For that reason, the governmental structure under the Korean Constitution has built-in limitations as a make-shift compromise rather than well thoughtout frames of the democratic government embodied on political objectives, theoretical bases and justifiable purposes. Those parliamentary elements that have been grafted to the presidential government were not to be functionally co-ordinated with the presidentialism; they in fact operated in dysfunction against the democratic advancement. However, certain elements of the parliament system have provided on the other hand convenient tools for a check and balance over the presidential powers. The recurrent controversies over the constitutional changes in the government structure are recently intensified again in the political fronts of Korea. Any change in the Constitution will require in-depth studies on the problems existing in the current government structure, which include such parliamentary elements that are embodied in the Constitution. My views on the constitutional reform on the government structure are focused primarily on the following parliamentary elements that exist in the Constitution, assuming that the basic form of the presidentialism thereunder will remain intact: (1) As a principle, we need to keep those parliamentary features that function well for the purpose, while those with dysfunction should be changed. Accordingly, the power of the executive to submit bills and the executive membership in the Assembly should be abolished as they tend to be used in support of usurpation of the executive powers. On the other hand, the legislative power of vote of non-confidence with respect to the Prime Minister and/ or a cabinet member, which operates to serve as a check and balance against the executive, should be kept and strengthened. (2) We also need to keep the office of the Prime Minister as a part of the executive branch of the government for the historical as well as functional considerations. Furthermore, the constitutional power of the Prime Minister to recommend appointment or dismissal of cabinet members should be strengthened by giving more weight to the prevailing interpretation of the constitutional verbiage. In addition, it appears to be desirable that more constitutional practices and precedents be built and accumulated in support of a stronger position and more active roles of the Prime Minister under the Constitution. (3) The Constitutional reform should be limited to a minimum and gradual change, if at all. I oppose to any constitutional change that involves an outright abolition of the current presidentialism or adoption of a brand new constitutional system from another country. Any changes to the government structure should be partial and gradual, and should be based on a reasonable consensus from the historical and poli-cultural perspectives of the general populace.

1948년 헌법제정과정에서 나타난 통치구조 논쟁에 관한 연구

정재도 유럽헌법학회 2020 유럽헌법연구 Vol.0 No.33

After the May 10 election in 1948, the biggest issue of the Constitutional Assembly, which had a mission to build a new independent nation as soon as possible, was how to enact a constitution that fits the principles of democracy while stabilizing an unstable political situation. In other words, it was to find out what is the optimal form of government that can satisfy democracy and stabilization at the same time. In this process, the position of creating a strong government centered on the President and the position of emphasizing close cooperation and cooperation between the National Assembly and the government sometimes struggled, and sometimes cooperated to create the governmental structure of the Constitution in 1948. The constitution of 1948, which was enacted in this way, was basically a mixed form of government that was based on the presidential government system but also had a parliamentary government system. The problem is that these mixed governmental forms were not planned and intended from the beginning, but rather were created unintentionally in the conflict between the position of claiming the presidential government system and the position of claiming the parliamentary government system. However, it should be noted here that the unconstitutionality of the 1948 Constitution is not purely a coincidence. At least, it seems that the Korean Democratic Party, which led the adaptation, still thought that the governmental form could be operated closer to the parliamentary government system through elements of the parliamentary government system scattered in the Constitution under the form of the presidential government system. It can also be confirmed through amendments proposed to control the president's powers through elements of the parliamentary government. Also, it is fully understandable in this regard that after the government form became a presidential system, the center of the constitutional debate in the Constitutional Assembly moved to how to organize various attempts to control the power of the President through the Constitution. And these attempts continued to act as a source of contention over the governmental structure in later constitutional history. After all, the authors of the 1948 constitution reached a consensus on one form of government, and it was said that they constantly struggled to reorganize the power structure and change the form of government to their understanding. And the absence of this mistaken consensus on the form of government became the seed of confrontation over the repetitive governmental structure in subsequent constitutional amendments. 1948년 5.10 총선 이후에 새로운 독립국가를 조속히 건설해야 한다는 사명감을 안고 있었던 제헌국회의 가장 큰 화두는 불안한 정국을 안정화시키면서 민주주의의 원칙에 걸맞는 헌법을 어떤 내용으로 제정할 것인지, 즉 민주주의와 정국의 안정화를 동시에 만족시킬 수 있는 최적의 정부형태는 무엇인지를 찾는 일이었다. 이 과정에서 대통령을 중심으로 강력한 정부를 만들어야 한다는 입장과 국회와 정부 간의 긴밀한 협조와 협력을 통해서 공고한 정부를 만들어야 한다는 입장이 때로는 투쟁하며, 때로는 협력하면서 1948년 헌법의 통치구조를 만들어 나갔다. 이렇게 제정된 1948년 헌법은 기본적으로 대통령중심제에 기반하면서도 의원내각제적 요소를 가지고 있는 혼합적인 정부형태이었다. 문제는 이러한 혼합적인 정부형태가 처음부터 계획되고 의도된 것이 아니라 오히려 대통령제를 주장하는 입장과 내각책임제를 주장하는 입장이 상호 충돌하면서 그 속에서 만들어진 것이라는 점이다. 그러나 여기서 주목할 것은 1948년 헌법의 이러한 비체계성이 순전히 우연의 산물만은 아니라는 점이다. 적어도 번안을 주도한 한민당의 입장에서는 여전히 대통령중심제 정부형태 아래에서 헌법에 산재해 있는 의원내각제적 요소들을 통해서 정부형태를 의원내각제에 가깝게 운영할 수 있다고 생각하고 있었던 것으로 보인다. 그것은 의원내각제적 요소를 통하여 대통령의 권한을 통제하기 위해서 제안되었던 수정안들을 통해서도 확인할 수 있다. 또한 1948년 헌법의 정부형태가 대통령중심제로 굳어진 뒤에는 제헌국회에서의 헌법제정논의의 중심이 대통령의 권한을 통제하기 위한 다양한 시도들을 어떻게 헌법에 구성하고 조직할 것인가로 옮겨가게 된 것도 이런 점에서 충분히 이해할 수 있다. 그리고 이러한 시도들은 이후의 헌정사에서 끊임없이 권력구조를 둘러싼 다툼의 근원으로서 작용을 하게 된다. 결국 1948년 헌법의 제정주체들은 하나의 정부형태에 대한 합의에 이르고서도 끊임없이 자신들이 이해하고 정립하려는 모습으로 권력구조를 개편하고 정부형태를 바꾸기 위해서 투쟁하였다고 할 수 있는데, 정부형태에 대한 이러한 “동상이몽적”인 합의의 부재가 이후의 헌법개정에 있어서 반복되는 통치구조를 둘러싼 대립의 씨앗이 되었다고 할 수 있다.

차기정부의 헌법적 과제

정만희(Jeong Man-hee) 한국헌법학회 2013 憲法學硏究 Vol.19 No.1

The author will review the constitutional agendas for reforming the next government within the context of the constitutional experiences in Korea regardless of whether there is a change in the government or whether the governing party returns to power in this election. This article, in particular, will focus on the agendas of political system and will put forth a proposed presidential system reform by exception of the political agendas of other parts of the nation. The constitutional agendas for the next government emphasized in this article are as follows: First, the new government should try to guarantee the procedural legitimacy of the governmental structure by exercising presidential authority about the procedure for appointing the prime minister and the state council members because, as the guardian of the Constitution, the president must respect and obey the articles dealing with the procedures of the Constitution in composing their administration. Moreover, the authority to recommend members of the State Council should be interpreted using its practical meaning, which includes checks and balances for internal institutions, and not just its formal meaning. Second, in order to dispel worries about an imperial president, the next government should respect inter-institutional control functions, such as the cabinet meeting system, the prime minister system, and the department system, which are the elements of the parliament system that limits the presidential powers in the Constitution. The next government should also develop a constitutional custom wherein the president delegates some parts of their immense power to the prime minister. The president should suppress abuse of the presidential pardon power and authority over human resources; rather, they should exercise this power in accordance with national consensus. Thus, it is necessary to reconsider the impartiality of the composition of the pardon commission under the current Amnesty Act, as well as a way to limit the scope of the pardon in case of a special pardon in particular. Third, the president, as the head of state and the combining mediator, should exercise the leadership to restore and activate the parliamentarism in relationship with the National Assembly. And the next government should positively lead system reform for the parliament system and party politics. Further, it is necessary to strengthen systematic complements to prevent ramming of bills through the National Assembly and to provide reform of the redistricting commission and the proportional representation system. Realization of democracy within the party is also important, as well as reasonable improvement of government subsidies, and overcoming the lopsidedness of each party in specific regions. And the government and the ruling party should respect the other parties and try to develop a culture of discussion and compromise under the spirit of parliamentarism when a divided government exists. The members of the National Assembly have a Constitutional obligation to perform their duties according to their consciences, giving priority to national interests, and the free vote principle should be guaranteed in the decision-making process in the National Assembly. Fourth, the next government should conclude its debating and pass the Constitutional amendment which has been unfolding for 10 years. As for the means and scope such a Constitutional amendment, the author suggests a gradual, phased way to reform the Constitution. Above all, it is necessary to amend the presidential system to a “four-year reappointment of the president,” and then to expand the reform to other parts in stages. Furthermore, it is necessary to publicize the issue of reform of the Constitutional amendment clauses as well because the Constitution should reflect changes over time.

중요사항별로 살펴본 헌법전사

허완중 전남대학교 법학연구소 2021 법학논총 Vol.41 No.3

Constitutional history generally takes as a starting point the enactment of the constitution in the modern meaning, which contains content on the protection of basic rights and separation of powers. The Constitution of the Provisional Government of the Republic of Korea corresponds to the constitution in the modern meaning. Therefore, the history of the Korean constitution must be traced back to at least April 11, 1919, when the Provisional Charter of the Republic of Korea was enacted. The historical process directly related to the establishment of the constitution in the modern meaning is called pre-constitutional history. In this respect, the pre-constitutional history is a link between before and after the establishment of the constitution in the modern meaning. Joseon and the Korean Empire were tyrannical monarchies. However, on April 11, 1919, the Provisional Charter of the Republic of Korea was drafted and the Republic of Korea was founded, and a democratic republic was proclaimed. There was a civil revolution that moved from empire to republic. Therefore, korean pre-constitutional history is the process of establishing the Republic of Korea as a democratic republic in which the subjects who have awakened to the people overcame the old system of secular politics. A constitutional code and a meaningful document containing constitutional matters are called a constitutional document. Contemporaneous thinking on the Constitution is expressed not only in the Constitutional Code, but also in various forms of documents. In this respect, constitutional documents are useful guides for understanding the history of the Constitution, especially the pre-constitutional history. Several constitutional documents are related to the pre-constitutional history. The country's name, which is closely related to the determination of the people and territory, and expresses the basic character of the country, was confirmed as the Republic of Korea through Joseon and the Korean Empire. The Republic of Korea refers to a country for all people, composed mainly of the korean nation. The form of state established by the Constitution was established as a democratic republic from the Provisional Charter of the Republic of Korea in 1919 and maintained until now. Republicanism emerged in earnest after efforts to change the tyrannical monarchy into a constitutional monarchy failed, overcoming the challenge of bluntism and becoming the basic principle of the Constitution. The subject of constitutional enactment emerged as the people built the Republic of Korea after a long struggle. The state domain is the basis of the people's living and the spatial scope of the state's power. Joseon and the Korean Empire did not give up their territories even in the face of constant threats and invasions from powers, so the territory of the Republic of Korea inherits the original territories of Joseon and the Korean Empire. The constitution in the modern meaning was enacted to guarantee the freedom and rights of the people. In Korea, the concept of equality has traditionally emerged, and the people have constantly fought for the abolition of the class system and realized it. And the concept of freedom imported from the West was immediately understood and put into practice. So, when the Provisional Charter of the Republic of Korea was drafted, freedom and rights were specifically stipulated. Therefore, when the Provisional Charter of the Republic of Korea was enacted, freedom and rights were stipulated in detail. The Provisional Government of the Republic of Korea was established after several attempts to establish a government in exile and a provisional government. 헌법사는 일반적으로 기본권 보호와 권력분립에 관한 내용을 담은 헌법인 근대적 의미의 헌법 제정을 출발점으로 삼는다. 대한민국 임시정부 헌법은 근대적 의미의 헌법에 해당한다. 따라서 한국 헌법사는 최소한 대한민국 임시헌장을 제정한 1919년 4월 11일로 거슬러 올라가야 한다. 근대적 의미의 헌법 제정과 직접 관련이 있는 역사적 과정을 헌법전사라고 한다. 이러한 점에서 헌법전사는 근대적 의미의 헌법 제정 이전과 이후를 연결하는 고리이다. 조선과 대한제국은 전제군주국이었다. 그런데 1919년 4월 11일 대한민국 임시헌장을 만들고 대한민국을 건국하면서 민주공화국이 선포되었다. 제국에서 공화국으로 넘어가는 시민혁명이 일어난 것이다. 따라서 한국 헌법전사는 전제군주정 아래에서 삼정문란을 가져온 세도정치라는 구체제를 어떻게 극복하고 인민으로 각성한 신민이 민주공화국인 대한민국을 세우는 과정이다. 헌법전과 헌법사항을 담은 의미 있는 문서를 아울러 헌법문서라고 한다. 헌법에 관한 당대의 사고는 헌법전뿐 아니라 다양한 형식의 문서로 결집하여 표출되기도 한다. 이러한 점에서 헌법사, 특히 헌법전사를 이해하는 데 헌법문서는 유용한 길잡이가 된다. 헌법전사와 관련이 있는 헌법문서에는 혁신정강 14조, 12개 폐정개혁안, 홍범 14조, 헌의 6조, 국태민안・칙어, 대한국 국제, 성명회 선언서, 대동단결선언, 무오독립선언서, 2・8 독립선언서, 3・1 독립선언서 등이 있다. 국민 및 영토 확정과 밀접한 관련이 있고, 나라의 기본성격을 표현하는 국호는 조선과 대한제국으로 거쳐 대한민국으로 확정되었다. 대한민국은 한민족을 중심으로 구성된 국민 모두를 위한 국가를 가리킨다. 헌법이 창설하는 국가 형태는 1919년 대한민국 임시헌장부터 민주공화국으로 확정되어 지금까지 유지된다. 공화주의는 전제군주제를 입헌군주제로 바꾸려는 노력이 무산되고 나서 본격적으로 등장하여 복벽주의의 도전을 물리치고 헌법의 기본원리가 되었다. 헌법을 만들고 고치는 주체는 인민으로 각성한 신민이 오랜 투쟁 끝에 시민으로 각성하고 나서 대한제국이 국가로서 기능하지 못하면서 나타난 자연상태를 민족으로 뭉쳐 극복하여 대한민국을 건설하면서 국민이 되어 나타났다. 국가영역은 국민이 사는 토대이면서 국가권력이 미치는 공간적 범위이다. 조선이 청나라와 백두산정계비를 세운 이후에 조선과 대한제국은 열강의 끊임없는 위협과 침략 속에도 영토를 조금도 포기하지 않아서 대한민국의 영토는 조선과 대한제국의 고유영토를 그대로 계승한다. 근대적 의미의 헌법은 국민의 자유와 권리를 보장하려고 제정되었다. 한국에서는 전통적으로 평등 개념이 등장하여 인민이 끊임없이 신분제 폐지를 위해서 싸워 실현하였다. 그리고 서양에서 수입한 자유 개념도 곧바로 이해하여 실천하는 데 이르렀다. 그래서 대한민국 임시헌장을 만들 때 자유와 권리가 구체적으로 규정되었다. 대한민국 임시정부는 광무 황제(고종)의 7차례 국내 망명 시도에 이은 국외 망명정부 시도와 미주에서 싹튼 임시정부 수립 노력이 발전적으로 결합하여 만들어진 것이다.