대한민국 헌법의 임시정부 계승성

Abstract

This thesis intends to examine how Korea has succeeded to the Constitution of the Provisional Government of Korea. The Constitution of the Provisional Government of Korea had been revised for 5 times according to changes in the political circumstances. Especially, Provisional Government had passed through changes in its power structure in the sequence of the presidential system, premierꠏcentered system, the cabinet council system and the prime minister system, and the power structures from premierꠏcentered system had a character of the parliamentary cabinet system. And, in case of the presidential system, the Provisional Assembly was supposed to select the prime minister and the chief for each ministry so that it was actually a mixed system of the presidential system and the parliamentary cabinet system. Therefore, it can be considered that the Provisional Assembly had more power than the Provisional Government. And, the oneꠏman leadership system was maintained at the beginning stage of the presidential system but the single collective leadership system was maintained during the period of premierꠏcentered system and the prime minister system, and the genuine collective leadership system was maintained during the period of the cabinet council system. Similarly, all articles regarding the power structure had been modified significantly but Article 1 ‘The Republic of Korea shall be a democratic republic’ almost remained unchanged. There was no other countries' constitution showing this article at that time, and it was very unique. Meanwhile, the national doctrine of the Provisional Government in 1941which also influenced the Constitution after liberation was based on Cho So Ang’s Principle of Three Equalities. The Principle of Three Equalities emphasizes equal opportunities in politics, economy and education, and this was similar to the political principle of Chinese neutrals at that time which had social democratic character aiming at the mixed economy of capitalism and socialism. The system of constitution established in 1948 by the Constitutional Assembly was almost same as the provisional charter established in 1944 by the Provisional Government. This shows that people who established the Constitution referred to the provisional charter significantly. Both constitutions were significantly similar in not only their systems but also their fundamental ideologies and contents. At first, the preamble of the Constitution says that it succeeds the spirit of the March First Movement, and it is same in the preamble of other constitutions of the Provisional Government. And Chairman Seo SangꠏIl of the constitution drafting committee also commented that the fundamental idea of the Constitution was the principle of equality which was developed from the Principle of Three Equalities from the national doctrine of the Provisional Government. As shown above, the fundamental idea and principle of the Constitution were inherited and developed from the Constitution and national doctrine of the Provisional Government. It is also same in the viewpoint of the contents. Article 1 of the Constitution ‘The Republic of Korea shall be a democratic republic’ and Article 2 ‘The sovereignty of the Republic of Korea shall reside in the people, and all state authority shall emanate from the people’ were inherited from Articles 1 and 4 of ‘1944 Provisional Charter’. And, Chapter 2 ‘Rights and Duties of Citizens' was also inherited and further developed from the contents regarding the people's fundamental human rights stated in ‘1944Provisional Charter’. Of course, there are also differences. Especially, the Constitution of the Provisional Government maintained the parliamentary cabinet system in the beginning stage of the presidential system, but the Constitution selected the presidential system. And, the Provisional Assembly had more power than the Provisional Government in the Constitution of the Provisional Government from the beginning and prevented the Government from abusing its power,but the presidential authority was reinforced in the Constitution but the National Assembly has less power in comparison to the Provisional Assembly. However, the presidential system in the Constitution contains many elements of the parliamentary cabinet system, and the state council or state minister system was inherited from the Provisional Government so that the Constitution intended to check the presidential authority through the National Assembly's right to consent the prime minister. And, in the viewpoint of economic aspects, the national doctrine of the Provisional Government emphasizes the nationalization of land large manufacturing organizations, but the Constitution accepts private ownership of land allows nationalization or municipalization only in case of public needs, showing some differences. However, the Constitution provides that economic affairs of an individual is only allowed within the range that social justice and balanced national economy are realized and the exercise of property rights shall conform to the public welfare, emphasizing public character and democracy in the economic aspects. As explained above, the Constitution was inherited and developed from the Constitution of the Provisional Government significantly in the viewpoint of its system, spirit (principle) and contents. Therefore, the Constitutional Assembly couldn't succeed to the Provisional Assembly in the personal aspect but had made efforts in their own way to succeed to the Provisional Assembly in the spiritual aspect, and their efforts are well displayed in the 'Constitution' which is the fundamental principle for the running of the country.