1962년 헌법제정론과 헌법개정론의 논쟁에 대한 연구

The Preamble of the 1962 Constitution reads “We, the people of Korea...hereby amend the Constitution ordained and established on 12th day of July, anno Domini 1948”. In fact, 1962 Constitution was ratified by the referendum initiated by the Supreme Council for National Reconstruction(SCNR), a procedure that had not been prescribed in the then existing Constitution. Whether the procedure for the creation of the new Constitution should be the amendment pursuant to the previous Constitution or a generation of a new Constitution was a matter of a great controversy then. This paper sets out to explore the meaning and legacy of this historical debate, while trying to show and analyze each participating positions. The military government who successfully took over the state apparatus through Coup of May 16th ruled by “Extraordinary measures law concerning reconstruction of the nation(EMLRN)” and announced to make a new constitution sometime in 1962 by the so-called ‘8⋅12 statement’. Accordingly, whether the process of drafting and ratifying the Constitution should be done by Article 98 of the Constitution or as an entirely new Constitution-making process became an important public issue. Opinions varied from suggesting ‘election to form the bicameral parliament should be held prior to constitutional amendment’, ‘that the Constitution can be amended by referendum or Amending Assembly’ to maintaining that ‘a new Constitution should be made by SCNR’s draft and popular referendum’, or ‘Constituent Assembly should be convened for the new Constitution’. The debate of 1962 had a strong implications in terms of constitutional politics. The military provisional government could hold different degree of control over constitution generating process according to the types of procedures proposed. Therefore,a great attention for the ongoing debate was taken by the SCNR. But the debate had relevant implications for constitutional theory as well, since it both presupposed and cited conceptions of constitutional amendment, constitution-making and the distinction between the two. The criterium for the distinctions were whether the limits of constitutional amendment were respected, whether replacement or a new execution of constituent power took place, and whether basic identity of the constitution were maintained. According to some, the identity and continuity of the Korean state was closely linked to this problem. The military government chose the term ‘amendment’ in order to avoid internal and international legitimacy issues even though they chose a path of unconstitutional constitutional ‘amendment’. The 1962 debate consisted of constitutional-political implications, but also proceeded in terms of constitutional-theoretical perspectives. It raised the issue of the suspension or elimination of former constitution, possibility of constitutional amendment or a constituent act, eventually leading to the problem of conception and distinction between constitutional amendment and constitution making. Endeavors to address these problems and enhancing the perspective thereof can be still useful in order to better understand Korean constitutional history and comparative constitutional studies. This, to this day could count as the legacy of 1962 debate.