헌법의 저항권 논의를 통해 본 부마민주항쟁의 헌정사적 의의

Abstract

The right to resistance can be exercised for the purpose of forming a new democratic constitutional order by summoning existing powers and revising the constitution if the constitutional order itself is contrary to values such as democracy and constitutionalism. The so–called Yushin Constitution and the Park Chung–hee government violated the basic rights of the people, including human dignity and values, and the opposition was due to the people's demand for democratization to restore democratic constitutional order. In light of emergency measures and the state of government’s agencies at the time, it was impossible for these people's demands to be delivered and realized by legal means within the constitutional order. Since the Buma Democratic Uprising itself represented the needs of the people in the form of protests, it basically corresponds to the exercise of basic rights such as freedom of expression. Although demonstrations developed and some violent acts such as destruction occurred, it was inevitable against public power that violated the exercise of legitimate basic rights, and even such violent acts were limited to public power. Therefore, the Buma Democratic Uprising meets all the requirements for the legitimate exercise of the right to resistance. However, even if the Buma Democratic Uprising has great significance in guaranteeing basic rights and the development of democracy, it will have to find its own meaning and function beyond the origin of the constitution and the spirit of resistance of the people in order to be included in the preamble of the constitution.