헌법 총강의 개정을 위한 기초 연구 －제5조(전쟁과 군사), 제6조(국제관계), 제7조(공무원)－

In discussions on amending the current Constitution, the General Provisions have not received much attention. Since the provisions of the General Provisions are generally related to the identity of the national community or pertain to general principles, it is easy to assume that they are excluded from the scope of constitutional amendment. However, the current Constitution’s General Provisions include several articles that are neither closely related to national identity nor so general as to be excluded from amendment. These include Article 5, which regulates war and the military; Article 6, which addresses the domestic legal effect of international norms and the status of foreigners; and Article 7, which concerns public officials. Article 5 renounces aggressive war, a provision that often raises questions about the constitutionality of dispatching troops overseas. More recently, issues of constitutional legitimacy have been raised regarding military and non-military support for Ukraine in Russia-Ukraine war. The constitutional requirement of political neutrality of the armed forces under Article 5 has also drawn particular attention in light of the 12ㆍ3 martial law crisis. Article 6 declares that treaties and the generally recognized rules of international law have the same effect as domestic law. This raises questions about what “the same effect as domestic law” means in terms of the hierarchy of legal norms within the domestic legal order. The provision that the status of foreigners shall be guaranteed as prescribed by international law and treaties has been the subject of debate regarding the protection of foreigners’ fundamental rights. With the growing importance of issues concerning foreign nationals and international relations in an era of globalization, the significance of the debates on the interpretation and amendment of Article 6 has been increasing. Article 7 provides for the status and responsibilities of public officials, their security of tenure, and their political neutrality. Questions have been raised as to whether this provision should be explained in terms of the theory of institutional guarantees. Since there is a separate provision on the fundamental right to hold public office, the significance of Article 7 may be limited. The provision on the political neutrality of public officials raises the issue of whether it can serve as a constitutional basis for restricting the fundamental rights of individual officials. This question has been the subject of debate. While public office should not be exploited for private political interests, public officials’ political rights must not be limited merely because they serve in public office. Whether Article 7 properly reflects this balance remains a subject of debate. This paper examines Articles 5, 6, and 7 of the Constitution by tracing their historical development, reviewing prevailing interpretations of the current provisions, and exploring proposals for constitutional amendment. In doing so, it seeks to provide foundational material for discussions on revising the General Provisions of the Constitution.