한국의 자유민주적 기본질서의 평가와 과제

This essay aims at investigating the recent development of Korean constitutional order and suggesting some tasks toward establishing a better constitutional justice in liberal democratic order. Although a remarkable progress of legal institutions in Korea since its revolutionary transformation of constitutional order in 1987, the overall record of democracy and the rule of law is not yet reached to the level of advanced state. The reasons why democracy and the rule of law in contemporary Korean society are not appraised as being adequately developed compared to the current level of other social sphere such as industrial and economic development may be summarized as follows. Firstly, disorderly conflicting state of values due to prevalent value-pluralism in contemporary society cause people to feel embarrassed and confused in recognizing what kind of norms to be set toward a desirable path of life. This kind of unstable and confusing state of norm system let people to pursue their own preferred means of life only conducive to their own personal interests. Secondly, excessive rights struggle among people to secure the material interest for the personal or group welfare results in the negligence of respecting the personality of human-being and the value of life. Thirdly, lack of developed and sophisticated process and insufficient number of professionals in the field of legislation distort the goal of democratic representative system only entailing the discontents among people in the legislative process. Fourthly, also the lack of sophistication and immature jurisprudence in adjudication may cause a distrust among people toward a particular decision for the controversial case or the entire operation of judicial system. This arises frequently from a way of legal interpretation focusing only the narrow textual meaning neglecting the historical background, context or the purpose of legislation. Sometimes the disposition of judges leaning toward the political interest of the executive branch distorts the value of neutral procedure of adjudication and the legitimate process toward achieving the justice according to law. In order to ameliorate the current flaws in constitutional orders and the operation of law this research particularly pinpoints several salient areas of legal problem. The task to be suggested would be a movement toward the transformation of the current oppressed nature of legal system into a greater responsive one. Firstly, prevailing trend of separation of law from morals in interpreting law should be transformed to an integrative approach connecting law with morals. This shift in the perspective of judges from a legal positivist approach to a natural law approach would facilitate to tackle the many difficult issues currently rampant in the society from diverse realms of life. Secondly, the ideas of justice and the common good and the value of life should be elevated to the realm of supreme values to be achieved in the adjudicative process as well as legislative deliberation. The above transformation in the operation of legal norm and order may be implemented in the establishment of neutral and fair stance of judges independent from political influence and the shifting emphasis in jurisprudence toward a value-oriented natural law approach and the principle of civic republicanism. The principle of civic republicanism with the emphasis of public reason and civic virtue may be fulfilled by reconstructing a public philosophy appropriate to Korean context as well as its people.