법의 정당성에 관한 연구

Abstract

Rule of law means control and rule by law, not 'man's domination' or 'man's domination by power and power', by requiring all state agencies to exercise their power on the basis of legislation enacted and amended laws. The call for the exercise of power based on the 'law' is aimed at ensuring and protecting the freedom and rights of members by preventing arbitrary and leafy exercise of power. Thus, the exercise of power by all state agencies could be justified only when exercised on the basis of the law. However, it is problematic that the exercise of power by state agencies is always justifiable if it is based on the law. This is because in cases where "law" represents the interests of power groups and community minorities, "law" can degenerate into a violent tool for many members of the community as their own law for them. In such cases, the "Act" loses its original function to guarantee and protect the freedom and rights of all members of the community. Therefore, the exercise of power based on the law for the benefit of power groups alone is not an exercise of power based on the law, but an exercise of violence through the law. It will be 'governance through law' not 'governance by law. Moreover, it is clear that 'governance through law' is only for power and not for community members. Thus, in the rule of law, the 'law' should not be for the benefit of the power group and the minority of the community, but only if it can represent the interests of the entire community and the interests of the majority. In the modern history of the Republic of Korea, dictatorships and military power groups enacted and amended laws through legislative agencies, and the existence of formal effects limited the freedom and basic rights of members of the Korean community and violated human rights. However, it is true that the laws enacted and revised only for the benefit of the dictatorial power group have been reduced to tools for the purpose of power group power, not for the entire Korean community. Their power groups may have formal legitimacy by exercising power based on legislative bodies enacted and revised laws. However, the law, which served as the basis for their power groups' exercise of power, was not for the benefit of the Korean community, but used as a tool for maintaining their power groups and suppressing and suppressing the opposition of power groups. Therefore, they only had a role as a tool for maintaining power and a purpose for maintaining power. It is questionable whether the exercise of power by the rule of law or the legitimacy of power is recognized. Laws and systems should be recognized to a minimum to maintain the order of the community in that they can limit the freedom and basic rights of community members and serve as grounds for punishment. It is also natural that members' freedom and rights should remain within the minimum range, even if they are restricted by laws and systems. Otherwise, the law is not intended to guarantee and protect the freedom and rights of its members, but to become a violent tool to suppress their freedom and rights. Thus, a law may be recognized as a practical justification only if the purpose exists for the interests of the community as a whole and of its members. If the purpose of the Act enacted and amended by a legislative body is not for the benefit of the entire community and its members, the formal effect of the Act cannot be recognized and should be abolished. The historical experience of "by law," "using the law," and "judicial murder," which existed in modern Korean history, shows that the purpose of the law should not be for power groups. Also, the fact that a state exists for the entire members, not for the ownership of a minority power group, is a lighthouse to the purpose of the law. If so, the law of a community exists only for the benefit of the community as a whole and its members, and it is worth justification and existence. Therefore, it is clear that in a national community, only the role and purpose of law as a tool for maintaining communities exist.