예외상태 법 이론으로 쿠데타 세력에 동조한 법학자 다시 읽기

This paper is a critical study of legal scholars who justified the coup forces that trampled on the Constitution and seized power through the May 16 military coup, the Yushin constitutional pro-coup, the December 12 military coup, and the May 17 nationwide expansion of martial law with legal theory. Han Tae-yeon drafted the ‘National Reconstruction Emergency Measures Act’ immediately after the May 16 coup in 1961, which was an unconstitutional law modeled after the Enabling Act that Hitler had created to undermine the Weimar Constitution. Han Tae-yeon justified the proclamation and enforcement of unconstitutional laws by the coup forces with the theory of emergency powers. Park Chung-hee’s Yushin constitutional amendment attempted to ‘normalize the state of exception’ by institutionalizing and perpetuating national emergency powers. Han Tae-yeon said that the ‘crisis government’ in the face of an emergency must change from a normal state to a war state, and that the Yushin regime, as a ‘emergency government’, must be an ‘emergency power’ system that gives all authority to the president. Gal Bong-geun argued that the emergency measure power should be exercised as a preventive measure, using the metaphor of ‘social quarantine.’ Han Tae-yeon also praised the 1980 revised constitution, saying that it maintained a ‘crisis government’ like the Yushin Constitution by leaving a clause on the president’s emergency measure power.