통일 및 관련법제의 쟁점과 전망 - 남북관계의 변화와 영토조항 및 북한주민의 법적지위 논쟁을 중심으로-

Abstract

According to our constitution, territorial clause set unification clause related to peaceful unification principle starting from the 4th republic and because of that it causes contradicting problems with unification clause thus first norm became disqualified. Our constitution first used the word “unification” in the 4th republic constitution (1972) suggesting that not only it was “provisional constitution” but also it suggested the principle of peaceful unification in methods and in contents. The 5th republic constitution (1980) also succeeded to the articles concerning constitutional unification relation and some articles were added or abolished. The 6th republic constitution(1987) generally succeeds to the contents of the 5th republic constitution. Especially under the Article 4 establishing ‘peaceful unification clause’, it reads “The Republic of Korea shall seek unification and shall formulate and carry out a policy of peaceful unification based on the fundamental principles of liberal democracy.” This kind of unification provision implies that the constitution recognizes the peaceful unification as a national and state goal. The unification clause logically contradicts with the territorial clause because it preconditions acknowledgement of division of Korean peninsula. Because of the unification clause, the normative meaning of the territorial clause has changed. Nowadays, the relationship between South and North Korea has changed from hostile relationship to companion relationship toward unification. Especially since June 2000, upon South-North summit meeting which was held after 55 years since the partition of the Korean peninsula, South and North Koreas are heading for “unification era” of reconciliation and cooperation leaving “division era” of hostility and confrontation. Therefore, problems concerning South-North relationship should be explained based on logic corresponding to unification era thus legal approaches about problems concerning South-North relationship also needs different viewpoint for new growing relationship and different thought for unification. In order to solve legal problems concerning application of our territorial clause based on constitution, new approach to territorial clause is needed. In this paper, territorial clause of unification era and North Koreans’ legal status are discussed. First, normative problems of territorial clause depending on changes of South-North relationship will be focused. Second, based upon this argument, North Koreans’ legal status problems will be discussed. In Short, unification–related articles were added first to the constitution under the 4th Republic and until now they have been developed as provisions related to unification. According to this, government’s policy towards North Korea and unification policy have been conversed up to now. Therefore, new approach upon territorial clause is needed. In order to do so, it is necessary to cast off cold war thought that existed in the past. Establishment of unification policy and its execution should not be blocked by the matters related to interpreting territorial clause.