12·3 계엄선포로 본 저항권의 고찰-시민불복종을 중심으로-

On December 3, 2024, President Yoon Suk-yeol declared martial law, asserting the necessity of military force to overcome a political crisis. On December 14, the National Assembly passed a motion for impeachment, and the President was suspended from office. In the aftermath, some of his supporters frequently invoked the “right of resistance,” culminating in an intrusion into the Seoul Western District Court on January 19. Such invocation constitutes an arbitrary misuse of the concept rather than a legitimate exercise of resistance. The right of resistance, in constitutional law, is understood as the people’s ultimate recourse when the democratic constitutional order is undermined by state authority. While the Korean Constitution does not explicitly provide for this right, the Preamble’s reference to the April 19 Democratic Ideals has been interpreted as its implicit recognition. Its essence lies in rejecting unjust legality that threatens human dignity and in restoring the legitimacy of the constitutional order. The exercise of this right requires objective and conscientious judgment, grounded not in private interests but in national consensus. The Constitutional Court, in reviewing the December 3 martial law, held that the President had “gravely betrayed the trust of the sovereign Korean people by violating the Constitution and laws, and by abandoning the constitutional duty to safeguard the Constitution.” This was not a mere violation of constitutional provisions but a fundamental infringement upon the core constitutional principles of popular sovereignty, separation of powers, and fundamental rights. Accordingly, presidential removal should be regarded not as the loss of a constitutional organ but as a constitutional safeguard itself. In contemporary constitutional systems, provisions on the right of resistance are often merely declaratory, lacking substantive force as a safeguard of the Constitution. This reality calls for a reconsideration of the prevailing doctrinal requirements, including a partial relaxation of their strict conditions. Incorporating the American theory of civil disobedience may provide a normative foundation for developing a modern understanding of resistance. For such a right to be meaningfully guaranteed, the legality of individual acts of resistance must be recognized under specific circumstances. This requires the establishment of clear constitutional criteria for its legitimate exercise, supported by future developments in criminal law concerning the justification of individual acts.