「픽션(fiction)」으로서 국민주권 ― 헌법상의 「국민주권」원리에 대한 단상 ―

Abstract

This paper aims to consider the Principle of the Nation’s Sovereignty guaranteed by our Constitution from the perspective of legal metaphor, namely “a legal fiction(AS-IF)”. Our constitution is declaring, “The Republic of Korea is a democratic republic. The sovereignty of the Republic of Korea lies with the Nation and all power comes from “the Nation”. What is the Constitution for us and what is the constitutional Principle of the Nation’s Sovereignty? The answer is just a constitutional fiction for US. What is the relationship between the “Nation” and “state”? Is the state an institution of the Nation, or a representative of the Nation, an institution of the state? According to the Constitution, the Nation is neither the subject nor the institution of the state. The Nation, whom the Constitution would speaks of, who do not exist in reality. The Nation is nothing but an abstract idea. In fact, it is not too much to say that most human thinking processes are formed by metaphores, regardless of reality. The Metaphor has two functions in an accident. One is positive and the other is negative. The former is to understand and experience some things through others, and the latter negative function is to close your eyes to reality. I think the constitutional sovereignty of the people is in the latter function. It identifies as if national sovereignty exists, and puts an imaginary meaning in its words. The public may go out to the polls for the upcoming parliamentary elections with relief as if the First Amendment is guaranteeing their sovereignty. So, after briefly summing up the concept of fiction, briefly examining how our Constitution expresses national sovereignty and how our constitutional textbooks interpret it, we took a brief look at what the content of the “national democracy” theory originally came up with in modern Europe, and what it claimed to be, going back to the so-called Civil Revolution period in France, where it originated, and looking back at the Korean reality of the Nation’s Sovereignty” as stipulated in our Constitution. According to the Christian doctrine, the Creator God created all things in heaven and earth and operates it according to his will, but the reality of the church is that priests interpret God’s will as he pleases and operate the church as he pleases. The Creator God is omnipotent, and the priest is his agent. The clergy are in the church and are serious about the church. Isn’t this logic working in countries with the Principle of the Nation’s Sovereignty”? Just as Christianity is the theory behind the omnipotence of a priest in a church, it is the theory that makes the national representative of the “Nation’s Sovereignty” theory a de facto sovereign. The “Nation” only have the “Spring” of state power, and they cannot drink or let the spring water flow directly. The theory of Nation’s Sovereignty is “the doctrine of A Sovereignty of the representatives, by the representatives and for representatives.” Then, under our Constitution, there is no choice but to conclude that “Nation’s Sovereignty” is fiction!