헌법규범 자체의 모순과 헌법규범 간 상충의 해결방안에 관한 일고찰

The Constitution exists as the supreme law in the nation. In this respect, constitutional provisions should not have inconsistency in themselves, nor should they cause contradictions between norms. Therefore, when establishing the provisions of the Constitution, it shall be stipulated as a complete provision without inconsistency or defect as possible. However, in terms of operating the Constitution, there are many cases in which inconsistency of norms in themselves and contradictions among them that are not expected in the time of the enactment of provisions occur. Even if the best solution to this problem is to amend the provisions through constitutional amendments, the normative power is secured through the interpretation method due to the difficultness of the amendment procedure in the case of a rigid constitution. The purpose of this study is to examine the inconsistency of the provisions in themselves and the contradiction between them in terms of application of the present Constitution and to suggest their solutions for the future constitutional amendment. The solutions are divided and suggested as for the inconsistency of the provisions in themselves and the contradiction between them. As of the inconsistency of the provisions in themselves, first, environmental rights(Article 35 of the Constitution), second, the President’s revoting demand for legislative bills(Article 53 of the Constitution) - impossibility of decision on revoting demand due to termination of the National Assembly - third, presidential election (Article 67 of the Constitution), and so forth. As of the contradiction between the provisions, first, territorial provision (Article 3 of the Constitution) and unification provision (Article 4 of the Constitution), second, principle of double indemnification prohibition for soldier․civilian military employee(Article 29, Paragraph 2 of the Constitution), third, military service and prohibition of disadvantageous treatment(Article 39 of the Constitution), etc. Other than that, though there are more cases of the inconsistency of the provisions in themselves and the contradiction between them, only the above provisions are considered by priority. As the solutions for the inconsistency of the provisions in themselves, first, as of environmental rights(Article 35 of the Constitution), they are made concrete as “Regarding the contents of environmental right, it is decided by law,” or suggested as a way to impose national obligation on the Constitution with environmental rights as social constitutional rights. Second, the President’s revoting demand for legislative bills(Article 53 of the Constitution) - as of impossibility of decision on revoting demand due to termination of the National Assembly, it is required to introduce a new relevant provision to the National Assembly law. Third, as of presidential election (Article 67 of the Constitution), the election in the National Assembly should be abolished and the single candidate should be presented on the basis of the total number of voters participating in the election. On the other hands, as the solutions for the contradiction between the provisions, first, in case of the contradiction between territorial provision (Article 3 of the Constitution) and unification provision (Article 4 of the Constitution), if constitutional amendment of territorial provision is supported by a majority of the people, a amendment plan to add a proviso clause is proposed. Second, a plan to eliminate the principle of double indemnification prohibition for soldier․civilian military employee(Article 29, Paragraph 2 of the Constitution) is suggested. Third, as of military service and prohibition of disadvantageous treatment(Article 39 of the Constitution), if any provision is stipulated, a plan in which the nation defines active obligation is suggested.