헌법개정 논의 - 헌법개정의 필요성과 개헌절차·방법에 관한 검토 -

This paper reexamines the discussion about Constitutional Amendment that has recently occurred in Korea. This paper will first review basic theories such as the Rigid Constitution and the difficulty of the Constitutional Amendment as related to the Constitutionalism Constitution, as well as the necessity of constitutional interpretation and revision as a device for retaining constitutional force and the method for generating a national consensus on the Constitutional Amendment, related to the amendment procedure for democratic legitimacy. In “The Reexamination of the Necessity of the Constitutional Amendment,” the core of this paper, this paper will attempt to identify the characteristics of the recent amendment debates, as well as the historical meaning of the Constitution. And then it will reexamine the reformists’ arguments regarding the necessity of the amendment, and it will analyze the concrete issues through a critical and cautious view. Using references to the Constitutional Amendment debates about the form of government, I will argue that in the current Constitution, the issue with the form of government is caused by institutional operations rather than by the institution itself. I will thus suggest that the Constitution should be partly amended while maintaining the current presidential system, rather than being fully amended through the introduction of new institutions such as the parliamentary system and the dual executive system. With regard to the debates about the parliamentary and legal systems, I generally agree with the Amendments proposed by both the constitutionalists and by the Advisory Committee for Constitutional Law Studies. Relating full reform and the addition of human rights that the reformists suggest, I recommend that the clauses regarded as a poison pill be abolished and that the addition of human rights be minimized on the basis of a cautious view. In the procedure, the method and time of Constitutional Amendment, first of all, I argue that it needs to positively reexamine the necessity of the Constitutional Amendment procedure, and I suggest that it needs a dualistic procedure of Constitutional Amendment in order to establish constitutional stability and to realize the practical adaptability that is harmonious with the periodic change. Second, as a method of diffusing the discussion about Constitutional Amendment, I recommend that a nationwide bipartisan Constitution Amendment Institute be founded in order to secure democratic legitimacy. Third, I believe that Constitutional Amendment in the present government could be possible by the end of 2011, although it has not enough time, related to the time table of the amendment. Therefore, the Constitution should be amended partly in a limited range, focusing on the government system in order to complete the Constitution Amendment as it has been discussed. Finally, I maintain that long-term constitutional research through a neutral Institute must continue in order to adopt the new Constitution for the coming united Korean period and for the future constitutional vision.