분단과 헌법 - 1948년 헌법을 중심으로 -

The division of Korean Peninsula has brought two separate constitutions in North and South Koreas with completely different political regimes and economic systems, and the Korean War in 1950 made the division nearly permanent. Nonetheless, both constitutions shared the notion that the division would be transitional until the (re)unification. Since 1948, South Korean constitution has provided that the territory of Korea consists of Korean peninsula and its adjacent islands, and has extended the boundary of nationality to the people in North Korea. Those provisions served as a firm basis of the legal system for the so-called national security like the National Security Act, that has often been abused under the name of anti-communism to oppress human rights such as freedom of conscience and expression. In addition, the failure to eradicate the vestiges of the colonial rule by Japanese Imperialism resulted in the wrong perception of the constitution. The constitutional history since the division has shown that the gap between constitutional norm and constitutional reality can be closed if the ruling class would rightly interpret and apply the constitution with the correct understanding of the constitutional ideals. On the contrary, if those with absolute power, standing superior even to the constitution, arbitrarily interpret and thus violate the constitution, the constitution could not function as the supreme law of the land and the human rights of the people would be trampled upon.