현행 헌법의 쟁점과 전망

Abstract

As the year, 2008, the Korean constitution law celebrates its 60th formulation anniversary and the Korean Constitutional Court celebrates its 20th opening anniversary. In this paper, I will review important issues related to current Korean constitutional law which was revised in 1987 and discuss the strategies and direction for improving the constitutional law. Recently, the divers constitutional issues raised from the cases of the Constitutional Court or the real situation have been increased. The sources of the constitutional law has been discussed when the Constitutional Court examined the constitutionality of the act about new administrative capital city. The Article 4, on Korean territory has been discussed with relation to the problem of national unification. In the area of basic theories of human rights(fundamental rights), the theories and cases on the subjects, effects, conflicts, and limitation of basic human rights were discussed. In the specific areas of basic human rights, the dignity and value of human beings and the rights to pursue happiness have been recognized their nature of basic human rights by the Constitutional Court and from this recognition, the human rights which were not written in the constitutional law could be drawn. In the rights of equal protection, the Constitutional Court has reviewed cases differently based on the category of strict scrutiny and moderate test. The rights of social welfare should be recognized as the rights as firmly as possible, while the nature of rights has been evaluated weak by some theorists. In the area of national government framework, the constitutional revision on the form of government has been discussed. As to the parliament, there has been the proposition to restrict privilege of Parliament members of exemption from apprehension and their immunity. In addition, the issues such as the control of constitutional judgement on the violation of the legislative process, the legal effect of a propose of the dismissal of minister, and the legal effect of hearings on the nominees have been discussed. The method of election of the President is discussed. His power, for instance, concerning the referendum has been also discussed. In the future, in order to guarantee broadly the basic human rights, it is important for the Constitutional Court to reinforce the human basic rights by judging and interpreting the constitution actively as well as the revision of constitutional law. For the constitutional stability, it may be desirable to strengthen the applicability of the constitutional principles by active constitutional interpretation rather than the constitutional revision. It is necessary to improve the method to nominate judges of The Constitutional Court and strengthen its power. The results of the theoretical research on constitutional law can give feedback for active constitutional judgement and the analytic research on constitutional cases can contribute to the better judgement.