헌법해석에서 주체성 논의의 필요성 및 헌법상 실존하는 주체성에 관한 고찰 ― 국민주권의 관점에서 ―

Because each positive law is prescribed by detailed rule, it can secure a legal stability with a propriety or soundness to some extent if it is not contradictory to formal logic. However, a constitution that is prescribed by abstract and open principles can hardly secure that type of stability, even if it is not contradictory to formal logic. The logical contradiction in constitution has significance for the whole process of the constitutional performance that realizes the constitutional principles. Through this process, constitutional interpretation is done properly. When evaluating performance of a constitution it is necessary to consider not only the objects, the principles and the system, which are interpreted, but also the subjects who realize them. The latter refers to the subjects who form a constitution. It is an issue regarding the subjects of sovereignty, the people and the subject of fundamental rights, the individual. A matter of the subject itself that is the premise of the constitutional subject. Above all, it is considered how each individual's reflective thinking, self-identity, is elevated to the subjectivity of Volk, which is an integrative field in which each subject's thinking is realized for itself on the basis of common sense. Constitutional law is discussed, which is the formulation of every single aspect of norms that are revealed in the integrative process of the subjectivity of Volk and of the principles and the system that are immanent in this process. It is considered what the subjectivity of Volk means in relation to the subjectivity of the state. Though the subjectivity of the state reveals the individual personality through the decisions of the state organ at the highest level, it exists as an organic state because its members that are mediated by the will of Volk unite together. Nevertheless, if the normativity is limited to the subjectivity of the state, the subjectivity of Volk has only a psychosocial effectiveness and ends in a standard of judgment whether the powerful action of the state is valid or not. The normativity of the subjectivity of Volk is therefore also forced to be acknowledged. In this case, the will that is formed by Volk exists as a public opinion and the starting ground for every subject's thinking. But the subjectivity of Volk should be converted to the subjectivity of the Nation, so that each individual's thoughts for oneself are condensed with authority as the center, in order to become the subjectivity of the state. The realization of the subjectivity of the Nation faces the risks of power abuse because a decision-making authority emerges as the specific will, not the general will. It reveals the sound subjectivity when it is complemented by the identification of the generality through a reflective thinking on a level of Volk. In this way, the subjectivity of Volk realizes popular sovereignty in the true sense of the word and the subjectivity of the state has democratic legitimacy. The subjectivity of the state reveals the sound subjectivity through the interaction between Nation and Volk. Furthermore, the realization of popular sovereignty is reconfirmed after the state organization has been established when the constitutional provisions interact with each other.