制憲國會의 構成과 建國憲法制定의 民主的 正當性

Much research has been conducted on the organization of the Constituent Assembly and the establishment process of the first Constitution of Korea(1948). On the other hand, there has been little effort to evaluate each based on a modernistic theory of Verfassungsgebungsgewalt. This research aims to assess the democratic legitimacy of the organization of the Constituent Assembly and the establishment of the first Constitution through the perspective of theory of legitimacy often used to evaluate the history of Constitutionalism. First, all political parties did not participate in the May 10th election. However, its democratic legitimacy may well be recognized in regard to the fact that the May 10th election was the first popular vote following the principle of democratic sovereignty and that more than 70% of the population partook in it. Second, a foundation to reflect the diverse views of the people had not been established in entirety during the formation of the parliament itself as well as the constitutional planning committee(헌법기초위원회). Nevertheless, pinpointing on this fact is not enough to deny the democratic legitimacy of the Constituent Assembly and the establishment of the Constitution. Third, it was problematic that the deliberation and voting on the first Constitution took place under simple majority rules. Despite such setbacks, final decisions were passed unanimously, adding to the claim of democratic legitimacy. Concerning the historical assessment of the organization of the Constituent Assembly and the establishment of the first Constitution, it should be noted that denying the democratic legitimacy would not bring back the bygones. Evaluating the history of Constitutionalism through the legitimacy debate only holds meaning in staying vigilant in order not to replicate undesirable historical events.