저항권이론의 재조명 ― 혁명권ㆍ저항권ㆍ시민불복종의 통합을 향한 탐색 ―

Abstract

The conventional theory in Korea argues that the right of resistance can be exercised only in an extreme situation where the basic constitutional order is totally denied, and only for the purpose of guarding the current constitution rather than establishing a new one. The author doubts the validity and utility of the theory. First, the clear distinction between resistance and revolution is based on the conventional theory and the constitutional precedent in Germany. The German theory is not in line with the traditional theory of right of resistance in the West as well as with the traditional theory of justice, i. e. the Divine-Order-Theory, in China and Korea. This is due to the fact that the German theory was based on its historical and legal backgrounds that Korea and even the other Western countries do not have. Second, the conditions for the exercise of the right of resistance can hardly be fulfilled in modern democratic countries, and even contradict one another. Thus the author suggests that the “right of resistance” be re-conceptualized as an ordinary right that can be exercised before the extraordinary situation comes. The envisioned new theory will combine the conventional right of resistance and civil disobedience. This essay does not present a new theory. But rather it argues that a new theory is necessary from both ideal and realistic perspective, and a new theory is plausible under Korean Constitution.