헌법상 문화국가원리와 문화적 기본권

Abstract

Culture, Cultural State, and the Constitutional Principle of Cultural State were topics that seldom received attention of constitutional scholars until recently. This late interest can be attributed to the fact that the term 'Cultural State' cannot be found anywhere in the Constitution. Also, there was no consensus on how the constitution should address culture in general. The preamble of the Constitution mention the word ‘culture’ in the context of "to afford equal opportunities to every person … in all fields including political, economic, social and cultural life … ." However much of the focus had been on how to best reflect political, economic, social principles into the constitutional text. Cultural principles had been left aside. The 1980 Constitution is the first constitution to explicitly stipulate the concept of culture, cultural heritage, national culture. Article 9 of the current Constitution sets out that "the State shall strive to sustain and develop the cultural heritage and to enhance national culture." According to Article 69, the President at the time of his/her inauguration takes an oath which includes a duty of "endeavoring to develop national culture." After the promulgation of the 1980 Constitution, the constitutional academia incorporated the principle of cultural state as a fundamental constitutional principle. It must be noted, however, that the current article limits the breadth of the principle of cultural state to comprise only cultural heritage and ethnic culture. Despite the narrow construction, the constitutional academia and the Constitutional Court acknowledges the principle of cultural state as a fundamental principle of the Korean Constitution. Thus, the 1980 Constitution is the basis for the cultural state principle becoming a pillar of the constitution. Another aspect that should be considered is that Korea's GNI per capita surpassed the $10,000 mark in the 1990's. This meant that physiological needs such as food, clothing, shelter were satisfied to some extent, and that people could afford to become interested in higher needs such as culture. Subsequently, one can observe a change of what is being emphasized with regards to 'the right to a life worth of human beings.' In the early years of the Republic of Korea, material affluence was the key factor in determining whether the right to a life worth of human beings was fulfilled. Now the focus is on whether people are provided with an environment where one can live a mentally affluent life. While the 19th century saw the emergence of the liberal democratic government, the 20th century was dominated by the social welfare state. At this juncture, freedom could no longer be realized by simply ensuring political freedoms, such as the freedom of expression. The cry of "Give me liberty, or give me death" had its heyday in the 19th century but lost its significance in the 20th century. Freedom in the 20th century required both mental elements and material elements. A life worth of human beings meant freedom from both mental and material deficiencies. But the social welfare state which aimed to provide a system of social insurance 'from cradle to grave' emphasized fulfilling the material needs of individuals. With the recognition that the right to a life worth of human beings cannot be met solely by material conditions, social rights or right to live confronted a new challenge. Mental elements regained importance and the constitutional principle of cultural state was called upon. As the principle of cultural state is the most recently incorporated fundamental constitutional principle, the contours of the principle is uncertain. Further studies on the relationship between the long-standing constitutional principles of liberal democracy, rule of law, social welfare state, international peace and the fledgling principle of cultural state are ongoing. In understanding the raison d'être of the principle of cultural state, a harmonious interpretation of the constitutional principle with other conventional principles is needed.