법의 의미, 누가 파악하고 어떻게 활용하는가? - ‘법해석’ 행위를 통해 살펴보는 남북한 통치 메커니즘의 비교 및 통일법제에서 갖는 공법적 함의 -

This article starts from the premise that “legal interpretation” is not a neutral technique of decoding text but a constitutional act that shapes and reveals the allocation and legitimacy of state power. Building on that premise, it offers a systematic comparative analysis of interpretive authority in South and North Korea. As a comparative frame, it draws on Japan’s model of a subordinate judiciary and the United States’ model of a coordinate judiciary―including recent shifts in U.S. case law that signal a reallocation of authority―to explain how interpretive power is positioned and how it moves along a continuum from concentration to distribution. In South Korea, judicial review stands at the apex, but a multilayered, distributed architecture involves the legislature, the executive, and the judiciary at different stages. Within this structure, governmental authoritative interpretations―especially those issued by the Ministry of Government Legislation―promote administrative uniformity and predictability, yet they are deliberately non-binding on courts, thereby preserving the circuit of separation of powers. Put differently, the ex ante coordinating role of the executive and the ex post controlling role of the judiciary share responsibility for both the formation and the disciplining of legal meaning. By contrast, under North Korea’s Law on Legislation, the Standing Committee of the Supreme People’s Assembly and the Cabinet encompass interpretation as well as the promulgation and revision of norms, and interpretive outcomes are accorded normative force equivalent to the legal texts they construe. The result is an institutionalized concentrated model in which legislation, execution, and interpretation converge. In that setting, interpretation functions less as a public process of argumentation and adjustment and more as the appropriation and fixation of the regime’s will in legal form. This juxtaposition suggests that any design for a unified Korean legal order must go beyond the mere merger of statutory texts and treat the constitutional reallocation of interpretive authority as a central task. Given the historical experience that identical constitutional vocabulary has produced divergent meanings under different grammars of power, the post-unification legal order should be reconfigured to combine democratized interpretation with final judicial control. Concretely, the ex ante coordinating function of governmental authoritative interpretation should be stably embedded, while safeguarding openness to judicial review so that administrative interpretations do not harden into per se rules. A shared repository―integrating precedents and interpretive opinions―would further minimize inter-institutional conflicts over meaning and enhance transparency and predictability. Such redesign would simultaneously strengthen the effectiveness of rights protection and the constitutionality of governance. It would also furnish the institutional footing for a linguistic and functional shift: interpretation would move from the language of command to the language of public discourse, and law would be repositioned from an instrument of regime preservation to an order of citizenship. Ultimately, the stability of a unified constitutional order will depend on locating an appropriate equilibrium between the dispersion and concentration of interpretive power. Through comparative constitutional observation, this article articulates the normative grounds and design principles for achieving that equilibrium, arguing that a balanced model―one that marries open, reason-giving executive interpretation with robust, final judicial review―offers the most credible path toward a lawful and democratically legitimate unification.