우리나라 법치주의 및 의회주의의 회고와 전망

Abstract

The violent “candle-light” riots in the center of the capital city Seoul had nearly paralyzed not only the traffic flows but also the normal functions of the newly inaugurated governments for months in early 2008. And the National Assembly had not been even convened until the middle of August. Naturally the riots gave rise to a nationwide debate on the topic of the rule of law, particularly its necessity as the prerequisite for democratic process and the market economy, versus the constitutionally provided freedom of speech and assembly and the principle of popular sovereignty. They had caused observers to give serious thoughts as well to the state of parliamentary government in Korea. The republic of Korea (South Korea) was established in 1948 on the basis of the free democratic Constitution whose features included both the rule of law and the principle of parliamentary government. As compared with the performance of Japanese judicial review of legislation institution, Korean judicial review has been extremely active, particularly since 1987 when Korean society become finally democratized. During the authoritarian phase in 1960s, 1970s and early 1980s, there existed a gap in Korean society between the formal written free democratic constitutional norms and the political practices which were autocratic. The take-off stage of Korean economic development overlaps the authoritarian phase, however. In any case, the political practices now came to live up to what the formal constitution provides, particularly political freedoms and rights, and judicial review of legislation is firmly embedded in Korean society today. And yet the critical views against judicial review on counter-majoritarian ground have been voiced, following the presidential impeachment trial and the unconstitutionality ruling of the capital city relocation act in 2004, reminiscent of American counterpart debates waged for many years. Korean criticism against judicial review seems, however, to carry little justification precisely because of the written constitutional provisions endorsing clearly the judicial review of legislation, the Constitutional Court at that. What has mattered with the rule of law as aftermath of the candle-light riots concerned with the respect for the law (rule by law) rather than the rule of law as such. For lack of the respect for the law, along with personal ties and corruption, may disturb democratic political order and market rules. Constitutionally the National Assembly is provided as a co-equal department of the government to the President. Politically speaking, however, the legislature has not been up sufficiently to what the constitution provides in terms of its performances and in terms of its autonomy structurally from other sources of power such as the President, political parties, and supporters. It is striking that the representative organ tends simply to reflect political conflicts and divisions that already exist in society and is not doing very well its function to integrate those conflicts and divisions into well-done pieces of legislations and resolution. Its failure particularly in performing its integration functions tends to lead to the increases of constitutional litigations. The president impeachment case and the capital relocation act case are only a few examples. The failure of the legislative organ in performing its representing and integrating functions while living up to the constitutional expectations also tends to be accompanied by street demonstrations and riots and by an increased netizen communications that are quickly to be described by radicals as direct democratic expression of the people. The candle-light riots may be cited as an example. It is also related to the popular distrust of professional politicians and their ambitions. The politicians in power turn to proposals in favor of constitutional amendment to take popular attention away. There are strong popular expectations for the National Assembly to attain its constitutionally provided status as the representative organ empowered with legislative functions and supervisory powers over other departments of the government. Otherwise, the popular idea of introducing a parliamentary form of government into Korea may well be leading to another failure with such form of government. The kind of popular(constitutional) expectations toward the National Assembly is another expression of respect for the constitution.