한반도 평화체제에 관한 헌법적 고찰

Abstract

South Korean constitution should be interpreted in such a way as to support the opinions of the South Korean people who have the sovereignty and advocate peaceful unification. Unification is not only constitutionally crucial but is also important for all the people who have the sovereignty. Also, all the provisions of the Constitution should be interpreted in such a way as to promote a mutually systematic and harmonious co-existence. From this perspective, Article 3 of the Constitution concerns the territorial scope of unification, and Article 4 concerns the method of and prerequisites for unification, and the two articles are not in conflict with each other. When the territorial clause was first introduced, North Korea was seen as an anti-state organization, as stated in the clause, and the clause functioned to block the understanding and exchange between the South and the North, but as the times have changed, the territorial clause can be interpreted as supporting the opinions of the people with sovereignty. The territorial clause can provide the grounds for South-North economic cooperation, the preliminary task for the establishment of peace in the Korean Peninsula, as well as for establishing a system of unification and peace that will enable positive action to be taken for the North Korean defectors. As it is stipulated in Article 4 of the Constitution, however, that peaceful unification policies based on the basic order of　the principles of freedom　and democracy　should be formulated and implemented, and as the basic order of the principle of freedom and democracy is understood to eventually declare the policy of "unification by absorption" with regard to the social democratic state North Korea, it will be difficult to negotiate with North Korea for the establishment of a peace system in the Korean Peninsula. To embrace North Korea, which has been practicing the basic order of social democracy for over 60 years, the constitutional clause of the basic order of free democracy needs to be amended into the basic order of democracy. Such action will inform North Korea that South Korea has no intention to achieve unification by absorption, and that the purpose of establishing a peace system is not to overthrow the government of North Korea but to help North Korea achieve economic development so that co-prosperity would exist in the Korean Peninsula. It is hoped that this will convince North Korea to enter into formal negotiations with South Korea for the establishment of such peace system in the Korean Peninsula.