성립면에서 본 근대 입헌주의적 헌법과 현대 사회국가적 헌법의 비교

Abstract

This study, having got its idea from the fact that constitutions made in the modern and contemporary time are not called ‘the modern constitution,’ or ‘the contemporary constitution,’ but ‘the modern constitutionalist constitution or the modern socialist constitution,’ tried to find their meaning and contents. In the case of constitutions, their focus is not found in the time they are made but in their contents, in which sense they are called ‘the modern constitutionist constitution and the modern socialist constitution,’ to whose time concept the concept of their meaning is added. This study tried to put stress not on studying the historical unfolding of constitutions but on arranging the values and core contents contained in the modern constitutionalist constitution and the modern socialist constitution. Technically, it does not deal with the whole constitution but arranges it by categorizing ideological bases, ones in charge of power and constitution ideologies. Liberalism and individualism can be said to have been the ideological base of the modern constitutionist constitution and ones in power in the modern constitutionist constitution were a binary system of kings and people. But ones on power in the modern socialist constitution are people. Seen from the categorizing aspect of the constitutional ideologies, the modern constitutionist constitution states people sovereignty, power balance, guaranteeing basic rights(civil liberties focused), written constitution and legalism but these contents in the modern socialist constitution gets changed to meet the spirit of the time. That is, the modern socialist constitution contains substantiation of popular sovereignty, major alteration to power balance pursuant to positive state, guarantee of the basic rights(security of social rights strengthened), substantiation of legalism, tendency toward a state led by political parties, introduction of the constitutional court system and global pacifism. This study considered what meaning and what functions these contents have in the modern constitutionalist constitution and the modern socialist constitution, through which it tried to clarify constitutional principles and contents of its norms.