大韓民國憲法(1948)의 “民主主義 諸 制度 樹立” －그 역사적 연속성의 복원을 위하여－

Abstract

No one can deny the fact that the year 1948, in which the first “formal” Korean Constitution was made and thereupon the first legitimate democratic go- vernment was established, is a crucial point in the development of Korean con- stitutionalism. But I, as a constitutional historian, have strong doubts about the self-completeness of the 42-day long constitution-making process in the Summer of 1948. To restore the historical continuity of our century-long constitutional journey, I trace the “ur-constitutional” documents in the late 19th century and examine the “pre-constitutional” documents in the first half of the 20th century, and draw some conclusions. First, the original intent of the immovable “Article I” in the constitutional text was to achieve our sovereign independence in the “international” context rather than to found a democratic republic in the “national” context. Second, the mixed system of parliamentarism and presidentialism in the 1948 Constitution can go back to the experiences in the “independence move- ment” period, the former was to “unite” and the latter was to “lead.” Third, the complex “duumviri” structure of the executive in the 1948 Constitution, which demanded the President’s cooperation with the Vice President, the Prime Minister, and the State Council, also originated from the constitutional tradition during the Provisional Government, and had been originally designed to promote both “parti- cipation” and “checks and balances.”