헌법개정과 다수결원리 그리고 국민투표

Abstract

This paper discusses constitutional amendment in relation with the majority rule and referendum which are a procedural means. It begins with a question of why the Constitution approves an amendment only both through the majority rule and rather the specially qualified majority voting, and through ultimately going to a referendum. The Constitution is supposed to breathe the breath of stability and continuity, supporting what is called conservative changes. In the constitutional amendment, adopting the specially qualified majority voting rather than the majority rule and requiring a referendum ultimately are with the intention to separate the Constitution from politics of everyday life. In this sense, the Constitution resists changing, without people's full agreement, constitutional matters such as the constitutional value order due to the transition of political power and situations. As a measure of protecting such features of the Constitution, the majority rule and referendum in the process of constitutional amendment have a significant meaning. The specially qualified majority voting is required to protect the Constitution from temporary shifts in political situations, development of public opinion, or changes led by a particular power. The constitutional amendment through ultimately going to a referendum means fixing the legitimacy of constitutional amendment and the constitutional value order as well as, in principle, ultimately asking people, the legislating power of the Constutution, their opinions on the issue. Considering that a referendum for a constitutional amendment asks people rather than constitution experts to present their opinions on a constitutional amendment, however, in order to fulfill the purpose of the amendment and have a certain effect, information about possible changes in constitutional situations after the amendment along with information about the constitutional reform itself should be given to common people in the process of the referendum and then, in this informed situation, enough time for people to think over the reform should be provided. Furthermore, procedural justice should be achieved to create the national consensus in the situation that parties for and against the constitutional amendment can form public opinion in a fair way. When the specially qualified majority voting and referendum in constitutional amendment function properly and are observed soundly as a major means for stability and continuity of the Constitution, they can achieve constitutional amendment that will inhibit imprudent constitutional reform and also accept conservative changes reflecting new constitutional order. Constitutional amendment is thought to be not changing the Constitution itself but providing the perspective on the Constitution with conservative changes. Looking back on our constitutional history over the last 60 years, we cannot but reconsider whether the previous amendments were held on basis of the perspective and whether they were held in consideration of the meaning embedded in the qualified majority voting and referendum. Also, it is needed to think about whether discussion on a constitutional amendment concerning recent issues such as changes in the power structure and addition of new basic human rights will make a constitutional reform possible if it is fully committed to the meanings embedded in the procedure, and whether an amendment will be achieved only by willingness and persuasion of constitution professionals and politicians.