문재인 대통령이 발의한 헌법개정안에 대한 비판적 고찰

In April, 2018, president Moon Jae-in proposed the Constitutional Amendment (hereinafter referred to as “Proposition”) on the basis of Para.1 of Article 128 of the Constitution of the Republic of Korea. The current constitution was amended in 1987, so the constitutional amendment was proposed in nearly thirty years. Up to the present time, there have not been a few gaps between constitutional norms and constitutional reality. A few of attempts for its improvement have occurred, but due to the chronic absence of conversation and agreement of the political circles, they could not even conceive the idea of the constitutional amendment. Actually, even in the 2017 presidential election, all candidates agreed to amend the constitution through the period around the 2018 local elections with the acknowledgement of the necessity of constitutional amendment. However, in the case of the recent proposition, the referendum on constitutional amendment simultaneously with the June 13 local elections has become difficult due to the conflicts and confrontations between the ruling party and the opposition parties. Nevertheless, the researcher wrote this paper at the idea of necessity of having a review on this because the recently proposed constitutional amendment could be an important standard in case the ruling party and opposition parties manage to come to an agreement. Looking into president Moon Jae-in’s recent proposition, it was completed by gathering opinions from all level of society and by going through many discussions with the relevant ministries, generally including desirable contents. However, it also has a few problems. In general, the constitution plays a role as a standard of judgment on what is right or wrong. However, a large portion of the constitution have many options, so its evaluation could come oppositely depending on the view of the world and values. For example, it is because the evaluation over the whole of the proposition could vary even with the only one item in connection with whether the presidential system maintenance is good, or a switch of the presidential system to the dual executive system is required. Looking back on the constitutional history of Korea, it is rare to find a partial amendment, which is called the basic model of constitution amendment; rather, Korea has been accustomed to a general amendment having the substance of the enactment of the constitution. Germany is the same with the length of our constitution, and it has maintained the consistency between norms and reality. When it comes to a constitutional amendment, we are so severely in the grip of false perception of complete amendment, thus making an error of revising nothing in the course of forcibly pushing forward with the revision of the whole. Unfortunately, we are surrounded with the situation where we are liable to make such an error. During the long time of over thirty years, constitutional reality has changed, so there is a need to revise a considerable portion of the constitution even for the national prosperity. This study hopes that even only the agreed part in political circles could be revised as soon as possible, and a considerable portion of the contents pointed out in this paper could be reflected in revising the constitution.