대한민국 임시정부 헌법과 1948년 대한민국 헌법

The Provisional Constitution of the Republic of Korea was the first modern constitution of the Republic of Korea, containing provisions on the protection of Basic rights and the separation of powers. It can be viewed as an intermediate stage, moving from a nominal constitution toward a substantive one. Furthermore, the Provisional Constitution of the Republic of Korea was a temporary constitution, which was intended to be applied only for a limited period until the Republic of Korea, having freed itself from the Japanese occupation, could establish a complete Constitution of the Republic of Korea. The Constitution of the Republic of Korea of 1948 is more than a modern constitution; it is the Republic of Korea’s first contemporary constitution in the true sense. Furthermore, the 1948 Constitution didn’t merely establish a new state from nothing; it was the constitution that completed the pre-existing Republic of Korea as a modern nation-state. In terms of form, the 1948 Constitution was not a revision of the 1944 Provisional Charter of the Republic of Korea, but a newly enacted, independent constitution. This is because the Provisional Constitution of the Republic of Korea was, by nature, a temporary constitution intended to apply only until the Japanese-occupied territory was recovered and the legal order was normalized. Consequently, it was naturally bound to lose its effect once a regular constitution was enacted and a general legal order was established. The Preamble of the 1948 Constitution of the Republic of Korea confirms that the Provisional Constitution of the Republic of Korea was enacted following the 3·1 Revolution, and that the current Constitution of the Republic of Korea succeeded and inherited it. This signifies that the enactment of the current Constitution is the fruition of the 3·1 Revolution, and the 3·1 Revolution is the driving force behind the existence of the Constitution. The Provisional Constitution of the Republic of Korea and the 1948 Constitution of the Republic of Korea share numerous fundamental elements: 1. The subject of enactment and the sovereign power are the same: the Korean people. 2. They use the same national name (the Republic of Korea). 3. Their constitutional structure is nearly identical, and the core content of their preambles is largely the same. 4. They share the same form of government as a democratic republic. 5. They have the same territorial scope of effectiveness. 6. The contents of fundamental rights and duties largely coincide. 7. Both adopt the principle of separation of powers. 8. Their governmental structures are similar, and the detailed provisions regarding the legislature, executive, and judiciary, as well as the method of constitutional amendment, do not differ significantly. In light of these points, the 1948 Constitution of the Republic of Korea, although formally created as a newly enacted constitution, can be viewed in a substantive sense as a revision of the 1944 Provisional Charter of the Republic of Korea. That is, the 1948 Constitution is a succession of the Provisional Constitution of the Republic of Korea. Accordingly, this historical and legal continuity confirms the following: 1. The Republic of Korea was founded on April 11, 1919. 2. The legal legitimacy of the Republic of Korea retroactively extends to April 11, 1919. 3. Neither the Republic of Korea nor the Korean Empire ever lost its sovereignty. 4. The enactment of the 1948 Constitution remedied the insufficient democratic legitimacy of the Provisional Constitution of the Republic of Korea. 5. The division of the Korean Peninsula into North and South becomes an abnormal or illegitimate state of affairs.