19세기 후반 독일 대의제 입헌국가의 입법권력의 지위 ―법치와 권력분립의 관점에서―

This paper examines the rule of law and the relation of state powers reconfigured by the constitutions of Prussia and Germany in the late 19th century, which stipulated the establishment of national representative and legislative power. German constitutional state construction reveals that the real status of legislative power depended on the historical formative process of legislative power that defies superficial understanding of the doctrine of the separation of the three powers: executive, legislative, judicative. Prussian-German legislative power illustrates the status of a constitution- based national representative body established under the dominant position of the executive and bereft of the right to participate in the government. The constitutional provisions that restricted the monarchical executive by the legislative power of the national representatives invoked debate over the exercising domain of the respective executive and legislative powers. To overcome the divide between the political and constitutional status of the legislative power, governmental formation out of bureaucrats and parliamentarians is suggested. Legislative power in the 19th century German constitutional state suggests that the practical status of legislative power was related with the process of its historical establishment, and the doctrine of separation of the three powers should be supplemented by their historical roles and the relation of the respective powers accordingly, and thereby legislative power could attain a real status and role under state powers.