헌법변천 재검토- 헌법 문언에 반하는 헌법형성의 가능성 -

The concept of constitutional change (Verfassungswandel) is usually discussed in relation to the amendment of the constitution. The concept of constitutional change is understood as the process of changing the normative meaning of the constitution without going through the revision process. For this reason, it is understood as ‘constitutional amendment without amendment’. However, the concept of constitutional change is a theoretical product created by a special period of time, and is considered as an anachronistic concept in today’s constitutional state where democracy and rule of law are established. Therefore, the view that there is no need to admit the concept of constitutional change is influential. On the other hand, it is argued that there is still a need to acknowledge that, although it is limited, in that it is necessary to compensate for the gap between the dynamically changing constitutional reality and the institutionalized and fixed constitutional norms. In this situation, this article also argues that the concept of constitutional change is still necessary in extremely exceptional cases. To this end, this article identifies this concept as follows from the perspective of legal methodology. The concept of constitutional change is a kind of the constitutional formation contra legem. This claim differs from the concept of constitutional change proposed by legal positivist public law scholars, for example Paul Laband and Georg Jellinek etc. First, according to this article, the concept of constitutional change is set fairly narrow. Only the disagreement between the formal and substantial meaning of the constitutional code, which appears in the process of interpreting the constitution, is identified as a constitutional change. Second, the concept of constitutional change is set as a active process. In this respect, this article accepts the Rudolf Smend School’s argument for the concept of constitutional change. However, there are also the following differences. First, this article denies the qualitative and structural differences between constitutional interpretation and legal interpretation. Second, this article distinguishes between constitutional interpretation and constitutional change. Constitutional changes are not constitutional interpretations, but constitutional formations. However, this article does not identify all constitutional formations as constitutional changes. Only a constitutional formation contra legem is regarded as a constitutional change. A constitutional formation praeter legem is excluded from the concept of constitutional change. This article argues that by using the Radbruch’s formula, a constitutional change can only be admitted exceptionally if a constitutional norm commits “constitutional illegality” (verfassungsgesetzliches Unrecht).