저항권의 정당화와 이론적 지평 : 비판과 실천 그리고 전망

This article is an attempt to provide a legal theoretical analysis of the right to resist, analyzing how the concept and exercise of the right to resist have been positioned in our law and practice, and to suggest legislative and constitutional alternatives. While the concept of the right to resist has been discussed in classrooms and the possibility of the right to resist can be found in our constitutional history, legal practice has been slow to grasp the concept or recognize its exercise. In the formal framework of Hohfeld's rights analysis, the right to resist has all the multilayered aspects of a legal relationship, most notably the “right not to be attacked,” which has at its core a party's moral claim that others should not attack him and has the substance of self-defense. However, when the target of resistance is the state or a public authority, it is difficult to base the right of resistance solely on common law self-defense. This is because the protected legal interests of right of resistance can range from national legal interests such as “defending the constitution” or “defending the rule of law” to specific personal legal interests while the self-defense is premised on the protection of personal legal interests. Furthermore, the right of resistance is not usually exercised by a single individual, but by a group of people, citizens, or a specific political entity. Therefore, it is a set of rights rather than a single right, and a group or multiple groups can be the subject of this right. Opposite to legal theoretical analysis, Korean legal practice has been slow to recognize the concept of the right to resist and its exercise. Since the right to resist is not explicitly stipulated in the Korean Constitution, there has been controversy over whether the Korean Constitution recognizes the right to resist, and past Supreme Court precedents did not recognize the binding power of the right to resist. However, in major cases and retrial decisions related to the May 18th democratic uprising, our courts have actively recognized the exercise of the right to resist as legitimate under criminal law. This has continued to this day. From a practical standpoint, we can also categorize, by stages, the situations or conditions under which resistance is justified as well as the possibility of restoring human rights and the rule of law. According to the historical assessment, the development of the May 18th democratization movement gradually developed in three dimensions in in terms of intensity of state violence and the awakening of citizens. It is worth noting the direction of the movement starting from constitutional resistance to extra-constitutional resistance, especially from the right to defend the constitutional order to the right to protect human rights. In conclusion, it should be emphasized that the pro-democracy movement carried out by citizens in response to crimes against constitutional order and humanity is an exercise of the right to resist and self-defense as it serves to defend against unconstitutionality and illegality. Reinforced through the establishment of self-defense against state violence and the inclusion of the May 18th Movement's spirit in the Preamble of the Constitution, right to resist could be solidified as both a substantive and practical right.