민주공화국과 법치주의 -미완의 과제인가

A mainstream view shared in the constitutional law literature is that a “democratic republic,” proclaimed in Article 1(1) of the Constitution of the Republic of Korea, is a passive formalism referring to a non-monarchy, and the rule of law, although it serves as a basic constitutional principle, is not expressly declared in the provisions of the Constitution. This paper questions this view by arguing that the core provision declaring that “the Republic of Korea shall be a democratic republic” forms an essential and immutable constitutional basis for the rule of law. The paper posits that an accurate reading of Article 1(1) requires a “narrative” understanding of the Constitution, namely, we should interpret the Constitution in light of not only the founding constitutional documents, but also the broader context of the body politic and the evolution of constitutional norms throughout history. In this vein, this paper draws from the relevant literature regarding political ideology, national history, and constitutional law, and concludes that Article 1(1), by embodying the political aspiration that the people of Korea construct a “free republic” governed by the “rule of law”, forms the constitutional basis for the principle of the rule of law.