한국 헌법체계에 비춘 헌법 제3조의 해석

Article 3 of the Constitution has been described as a provision stipulating the country’s unification. However, territory is the essence of the provision. Having the nation’s territory determined constitutes one of significant factors in securing safety. People feel secured only after being protected within a defined territory. State territory also plays a central role in shaping international relations among territorial states. Accordingly, it cannot be emphasized enough that the specific meaning of Article 3, the provision governing the nation’s territory has its significance. In this regard, Article 3 should be identified as a territory provision rather than a unification provision. As Article 3 of the Constitution establishes that the territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands, it determines a spatial limit of the effects of state power, focusing on territory. This means that by defining the territory as the Korean peninsula and its adjacent islands, the people of the Republic of Korea are established around the Korean people who have lived and are living therein. As such, Article 3 of the Constitution, defines the territory and thereby indicates the people shaping the nation‘s identity. This is why Article 3, so called ‘territory provision’, is provided: to affirm national identity, express the Republic of Korea as a peaceful country and to specify the extent of the constitution’s reach. Under Article 3, ‘Daehan’ is the name of the country meaning the grand integration of han-kuk and ‘Min-kuk’ means neither a democratic country nor a democratic republic. Instead, it means a nation for all the people that the nation embraces. After all, ‘Daehan Minkuk’ means a nation for the Korean people. Under Article 3, ‘the territory’ should be interpreted narrowly, excluding territorial waters and airspace. And ‘the Korean peninsula and its adjacent islands’ phrase does not refer to certain area specifically, but symbolically refers to the nation’s indigenous territory. As ‘Daehan Minkuk’ has succeeded the Daehan Empire and the Shanghai Korean Provisional Government, the indigenous territory of ‘Daehan Minkuk’ should be the indigenous territory of the Daehan Empire. If Tomun River inscribed on the Border Monument on Mt. Baikdu is the upper Songhwa River, the indigenous territory of the Daehan Empire would be south of Amnok River-Tomun River-Songhwa River- Black Dragon River (Amur River). As unification can be completed by forming a unified nation, it is undeniable that territory is an important issue with regard to unification. As such, Article 3 of the Constitution is nothing but the unification provision to the extent that territory becomes an issue in unification. Article 3 provides a ground for unification by prescribing the division of South Korea and North Korea in abnormal condition. Article 3 provides the territory of the unified Korea and outlines the subjects of unification. Also, Article 3 denies North Korea’s statehood, but the provision by itself hardly constitutes a sufficient ground for the National Security Act.