헌법의 영토와 통일조항 개정론에 대한 비판적 검토

• 영문명: A Critical Study on the Amendment Assertion on the Territory and the Unification Clauses of the Constitution
• 발행기관: 한국헌법학회
• 저자명: 도회근(Do Hoe-Kun)
• 간행물 정보: 『헌법학연구』憲法學硏究 第12卷 第4號, 35~68쪽, 전체 34쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.11.01

영문 초록

  The Territory Clause and the Unification Clause of the Constitution are seen to be contradictory to each other, so there have been published many theories on this point. And recently an assertion is maintained that these clauses should be amended.
  There are 8 theories on the relation between two clauses: a theory that the South Korean Constitution is effective in the North Korean area and North Korea is an illegal and anti-state organization; a theory that the territory clause should be deleted because it is contradictory to the unification clause; and so on.
  There are 4 assertions on the constitutional amendment: that the territory clause should be deleted; that the territory and the unification clauses should amended together; that a proviso that the Korean Constitution should be effective only in South Korean area until unification should be added; that the constitutional amendment is not needed.
  I maintain the 4th assertion, the reasons of which are;
  1. Almost theories on the relation between two clauses support the 4th assertion.
  2. The territory clause is very unique and meaningful clause since the Constitution founded that possess a positive will and hope to unification.
  3. If the territory clause is maintained, when North Korea regime crisis happens then South Korea"s intervention to North Korean area can be justified.
  4. What North Korea matters is not the Constitution but the National Security Act.
  5. Deletion of expression "Liberal democratic basic order" from the unification clause is meaningless, because it is beyond limit of constitutional amendment.
  6. If North Korea is treated as a foreign country because of deletion of the territory clause, legal basis of concern and effort of South Korea to the refugees from North Korea suppression can be lost.
  7. Almost public law scholars of South Korea are against territory clause amendment.
  If majority of Korean people vote for amendment, I agree to addition of proviso.

목차

Ⅰ. 머리말
Ⅱ. 역대헌법의 영토와 통일에 관한 규정
Ⅲ. 영토조항과 관련된 학설과 판례
Ⅳ. 비교헌법적 검토
Ⅴ. 영토조항 개정론 검토
Ⅵ. 맺는말 - 고르디아스의 매듭 풀기
참고문헌
[Abstract]

키워드

영토조항 통일조항 헌법개정 영토조항 삭제론 단서 추가 개정론 영토조항 개정불필요론