헌법상 통일명령과 한반도 통일의 기본방향

Abstract

This paper focuses on the unification-related provisions in the Constitution, and specifies the meaning of related provisions and the basic direction for Korean unification. This paper starts with the systematization of unification- related provisions in the Constitution. Unification-related provisions in the Constitution are referred to as unification provisions, and consist of the unification order in the preamble of the Constitution and the unification- related provisions in the main text of the Constitution. The unification order was derived from the meaning of the constitutional order given to the Korean people in the preamble of the Constitution. From this, in the interpretation related to the direction of unification in the unification of the Korean Peninsula, the unification order was used as the standard for interpretation and the relevant contents were specified. The function of the unification order as a standard for interpretation of the unification-related provision was based on the normative power of the preamble and the relationship between the preamble and the main text. In accordance with the standard of interpretation, this paper argued that the unification of the Korean Peninsula should be realized by the Korean people, which consist of the residents of both North and South Korea. And even if there is no explicit provision of the right to ‘self-determination’ regarding unification as in the preamble of the Basic Law of West Germany, the meaning of the Korean people’s decision to unify the Korean Peninsula is derived from the meaning that the Korean people should be the subject. This meaning was based on the provisions of Article 72 for a referendum on ‘unification’. Regarding the problem of spatial scope of unification, it was embodied from a new interpretation of the territorial clause. Contrary to the meaning of the traditional territorial clause, an attempt was made to interpret the territorial clause according to the unification order, and from this, the spatial scope of the unification of the Korean Peninsula was ‘the Korean Peninsula and its annexed islands’ as defined by the territorial clause. In addition, peaceful unification and related issues were reviewed as means and methods for Korean unification. Peaceful unification means unification by mutual agreement at an equal position, and it was said that the Korean people should complete unification by mutual agreement on an equal position between the South and North Korea. Accordingly, North Korea’s anti-state group nature was viewed as an obstacle to the realization of peaceful unification on an equal position. Furthermore, issues related to ‘unification based on the liberal and democratic basic order’ were examined as the basic order for unification. Although the free and democratic basic order as the basic order for unification may be an obstacle to an agreement with North Korea, which has a different system, this problem can be solved through a flexible interpretation of the free and democratic basic order in the process of agreement on unification. In this paper, such an interpretation is said to be a reunification-oriented interpretation that realizes peaceful unification and unification based on the free and democratic basic order.