헌법상 북한의 지위와 새로운 해석 가능성에 관한 검토

Abstract

The issue of North Korea's legal status is one of the important tasks to be resolved for relations between South and North Korea in the process of unification. This paper examines the precedents of the Supreme Court and the Constitutional Court on the substance and legal status of North Korea and presents a new interpretation direction on the legal status of North Korea. The Supreme Court denied the substance of North Korea on the basis of constitutional territorial provisions and took a position to see North Korea as an anti-state organization. Even under the 1972 Constitution, which prescribed the mission of “reunification” on the premise of division in the preamble of the constitution, it still maintained a position to materialize the position of North Korea based on territorial provisions. The Constitutional Court also follows the position of the Supreme Court and establishes a dual position in North Korea, taking a position based on the interpretation of relativizing the territorial provisions within the meaning of the Peaceful Unification Clause, showing a difference from the Supreme Court. The issue of North Korea's legal status is identified on the basis of territorial provisions and peaceful reunification provisions in the current constitution. This raises the question of the relationship between the territorial provisions and the peaceful unification provisions. The Supreme Court is taking the position of separating the normative powers of the two and clarifying the legal status of North Korea in each. The Constitutional Court does not clearly state that it is based on territorial provisions like the Supreme Court. This position of the Supreme Court and the Constitutional Court is not valid from the viewpoint of a unification-oriented constitution The territorial provisions is not the basis of the completed constitution, but is the provision of a unification-oriented, future character, and has meaning as a spatial extent of a unified Korea. Therefore, the territorial provisionㄴ occupy an important part of the unification provisions, and the legal status of North Korea should be established based on the integrated grounds of the territorial provisions and the peaceful reunification provisions. According to this interpretation, anti-state organization as North Korea's dual status proposed by the Constitutional Court or the Supreme Court cannot be established from this point of view. It is based on the fact that contradicting meanings cannot be derived from the constitutional norms, and the constitutional norm does not have different meanings for one object. In addition, the inter-relations of ‘the entire nations on the Korean Peninsula,’ that is, the special relations between the South and North Korea, can be constitutively accepted in the constitutional interpretation based on the provisions of territorial and peaceful unification.