헌법 제20조 제2항 정교분리 규정의 개정방향에 대한 연구

The First Amendment to the U.S. Constitution prohibits the establishment of a state religion, but nowhere in the U.S. Constitution does the phrase “separation of church and state” or “separation of church and politics” exist. In the U.S., the Establishment Clause in the U.S. Constitution is viewed as separation of church and state, not separation of church and politics. This is because the “separation of religion and state” is a completely different concept from the “separation of religion and politics.” In Korea, due to the influence of the U.S. Constitution, the principle of separation of religion and politics and denial of state religion was first legislated in the First Constitution of the Republic of Korea. However, when the U.S. Military Government translated the Proclamation on the Rights of the Korean People into Korean, it mistranslated the English original text’s “separation of church and state” as “separation of religion and politics.” It is presumed that Dr. Jin-Oh Yoo directly referenced this mistranslation in the Korean translation and included “separation of religion and politics” instead of “separation of religion and state” in the First Constitution of Korea. Since then, the error of confusing the “separation of religion and state” and the “separation of religion and politics” without distinguishing the former from the latter has continued in Korea. Furthermore, some even demand regulations or restrictions on religious participation in politics based on the separation of religion and politics clause in the Korean Constitution. However, the separation of religion and politics is not only realistically impossible, but also unjustifiable. In the United States, which follows the principle of separation of church and state, religious participation in politics is not regulated or restricted. On the other hand, in Korea, where the separation of religion and politics is stipulated in the Korean Constitution, the separation of religion and politics has been distorted into a prohibition of religious participation in politics throughout modern and contemporary history of Korea, and discriminatory regulations that infringe on the freedom of political expression of religion, such as the Article 85, Paragraph 3 of the current Public Official Election Act of Korea, have been institutionalized. The Korean Constitutional Court also interprets that religious participation in politics should be restricted or regulated in accordance with the principle of separation of religion and politics in the Korean Constitution. Meanwhile, most major countries around the world that do not recognize a state religion stipulate in their constitutions the separation of religion and state along with the prohibition of the establishment of a state religion, or only the separation of religion and state, or only the prohibition of the establishment of a state religion. In addition, among these countries, there are countries that recognize in their constitutions that the state and religion can cooperate with each other for the public interest, etc., along with the prohibition of the establishment of a state religion or the separation of religion and state. However, it seems that Korea is almost the only country that stipulates in its Constitution the “separation of religion and politics” instead of the “separation of religion and state.” The complete severance of the relationship between religion and politics does not fit constitutional reality of Korea, and causes the problem of constitutional norms being separated from constitutional reality. Furthermore, the separation of religion and politics can easily infringe upon the fundamental rights of religious organizations and be abused as a means of suppressing religion. In order to solve this problem, it is ultimately necessary to revise the current Article 20, Paragraph 2 of the Korean Constitution to delete the separation of religion and politics or replace it with the separation of religion and state.