헌법전문의 기능에 관한 비교법적 고찰

Most constitutional democratic countries have a preamble in their constitutions. A preamble is introduction to the constitution and generally has the formal title “Preamble” or “Forword”. Most preambles refer the source of sovereignty, the history regarding the constitutional enactment and the constitutional basic principles, such as guaranteeing liberty or human rights. From this point of view, preamble has a declaratory function and integrative function. But preamble has the legal function combined with other constitutional provisions. Some preambles are used as a guide for constitutional interpretation. On the other hand, there are preambles serving as independent sources for constitutional rights or the limitation of constitutional amendments. In some examples, preambles have a tendency to be used as independent sources for constitutional rights if there is no bill of rights in the constitution. In other examples, such as in India, preambles are more legally enforceable when they provide concrete norms rather than abstract ideas. On the other hand, if there is a difference between the content of the preamble and the text of the constitution like Canada, the preamble is less legally enforceable in constitutional adjudication. Korean Constitution has provisions guaranteeing the right to liberty, the right to political participation, the right to equality and the right to procedure. Also article 10 of the current constitution provides comprehensive constitutional rights, such as human dignity and the right to pursuit of happiness. Moreover, article 37 section 1 declare freedoms and rights shall not be neglected on the grounds that they are not enumerated in the constitution. In these respects, I think it is unnecessary to draw constitutional rights from the preamble of Korean Constitution.