김정은 시대 북한식 사회주의법치의 의미와 한계- 법의 지배(rule of law)의 일반론적 시각을 중심으로 -

Abstract

The aim of this article is to grasp the meaning and limits of the rule by North Korean socialist law from the general view of the theory of rule of law. The ultimate goal is to present tasks for legislative reform and how and in what direction the Kim Jong-un regime will pursue legislative reform in the course of economic and political reform by comprehending the meaning, purpose and operation of rule by socialist law that the North Korean authorities intend. The law system in North Korea has been shaped and changed, influenced by her socialist development process. In particular, her socialist constitution has been actively used as a means of governing to consolidate the absolutization of personal power, privatization of national power, and justification of hereditary succession. The legislative results such as the ‘Kim Il Sung Constitution’ after Kim Il Sung's death, and the ‘Kim Il Sung-Kim Jong Il Constitution’ after Kim Jong Il's death have been revealed. This is no different from the official privatization of the Constitution, the highest law of nation. The Kim Jong-un regime, which has been in power for seven years, seems to be trying to realize the ‘completion of the socialist law system’ and ‘the nation of rule by socialist law’ that has been claimed since its predecessor. With advances in North Korean legislation so far, the academic community here considers North Korea to be developing ‘formal rule of law’ or ‘rule by law’. Given the characteristics of North Korean governance structure, it is difficult to match the ‘rule by socialist law in North Korea’ with principle of rule of law in capitalist countries. However, it is meaningful to interpret the principles and methods of operating the North Korean socialist law in light of the basic principles of the rule of law at a time when North Korea is moving toward the ‘rule by law’ rather than the ‘rule of men.’ From a general view of the rule of law, the rule by socialist law in North Korea cannot initially assume the concept of 'law as a means to guarantee basic rights' and the concept of 'law as a means of strengthening sovereignty' is stronger. If the principle of ‘legal stability (or predictability of law)’ and ‘equality before the law’ are reflected limitedly and partially in the reform of the North Korean socialist law, however, then the rule by law for guaranteeing basic rights of the North Korean people will be done. And the supreme ruler and the ruling Workers' Party will have some rule under the law. In the end, the reform agenda of the North Korean socialist law is to solve the problem of legal stability and the legal binding of the arbitrary state power, which must be followed by the law of the members of the society.