유신헌법의 불법성 논증

Abstract

According to the history of modern constitutionalism in Korea, we found that the Korean Constitution was repeatedly abused for justifying uncontrolled political power(‘Leviathan’). The so-called “Yushin-Constitution” in 1972 is the extreme case of that kind of Constitution. The “Yushin-Constitution” deprived popular sovereignty of the nation, which is the source of democratically legitimate power, of the people and destroyed the separation of powers which is a basic principle of rule of law. It made the constitutional guarantee of human rights meaningless, which is a kernel of modern constitutionalism. Moreover it established a political structure of dictatorship and abandoned a republic principle. After all, the “Yushin-Constitution” was a kind of a ‘decorative’ constitution in the meaning of Loewenstein which entrusted one man(dictator) with all powers of the state. In the case of regarding an establishment of the “Yushin-Constitution” as a revision of the constitution, it exceeded the limit of a revision of the constitution and in the case of regarding it as an enactment of the constitution, it did not satisfy the justifying requirement of an enactment of the constitution. In any cases, the “Yushin-Constitution” is no more than ‘a fact which cannot be a law’. Finally, the problem of the subject and means of declaration of unlawfulness and invalidness of the “Yushin-Constitution” is not only difficult but also delicate. The best way to solve this problem may be the enactment of the special law by the National Assembly.