헌법 전문상 ‘임시정부 법통’의 의미 재조명 : 한국의 주권공동체로서의 계속성에 관한 시론(試論)

This article aims to gain a new perspective on the meaning of the lineage of the Provisional Government of the Republic of Korea (“PG”) in the Constitutional Preamble that can overcome the recent controversy over the so-called “Founding Day” while still recognizing the reality of the previous Japanese occupation. As a preliminary step, this paper first argues that the current views that the lineage of PGROK should be associated with the founding of the Republic of Korea lack both a purposive necessity and an ontological basis. The lineage refers to the legitimacy to rule on the Korean peninsula which has lied in the Korean people, not to an actual establishment in 1919 of the Republic of Korea. This interpretation suggestedly does not hinder the legal treatment on the colonial period. The content of that orthodoxy refers to the Korean Constitution’s attitude toward the Japanese occupation, and this article utilizes the concept of sovereignty as a mediating concept to explain it. It points out the gap between the existing domestic law (constitutional) and international law concepts of sovereignty, and reconstructs the concept of sovereignty as “a concept that precedes a State and refers to the source of legitimacy of the governing power. Thus, after 1910, the sovereignty of the Korean peninsula was vested in the Korean people, not in the Japanese Empire, and PG is orthodox as an independence movement organization which signifies the sovereign will of the people, who pursued a unified sovereign state that could actually attribute the ruling powers to their rightful subject, the people themselves.