대한민국헌법의 성립과 변경 : 세기에 걸친 경험의 종합과 새로운 개혁의 모색

초록

How did “We the People of Korea” create and revise our Constitution? In this Article, I traced the almost-century old history of constitution-making and constitutional change in Korea, and found some common characteristics of the Korean experience. First, constitutional changes were made under such extraordinary circumstances as national liberation, civil resistance, military coup or dramatical change of congressional seats. In most cases the revision of the constitution meant the normative approval of political fait accompli rather than the normative creation of new political order. Second, constitutional changes were attempted in urgent situations, and therefore suffered from lack of careful deliberation. In bad circumstances, it’s difficult for us to revise the constitution successfully, in good circumstances, however, it’s unnecessary for us to revise the constitution at all. Third, the authority of the existing constitution was preferably respected in making any new constitution. Nevertheless, the form of “complete revision” was chosen more often than that of “partial revision.” Forth, the institutional interests of the president and the congress were important factors in the process of constitution-making and constitutional change, with the exception of Article 129 Paragraph 2 of the Constitution of 1980 and Chapter 6 of the Constitution of 1987. The group interests of political parties and factions also played important roles. Based on the above characteristics, I suggested a possible way of revising the Constitution of 1987: a small-sized constitutional convention should be organized and a partial revision should be ratified by a national referendum.

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