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比較憲法에 관한 硏究 : 民主主義國家의 憲法과 共産主義國家의 憲法을 中心으로
金水暎,黃革周,權光植,吳再煥,崔聖俊,金益鉉,金永休,王任東 朝鮮大學校 法政大學 1977 法政大論文集 Vol.4 No.-
This paper aims to make clear the fundamental differences between the constitutions of two political systems, constitutional democracy and communism. (1) Fundamental Human Rights The recognition and the protection of fundamental liberties are the essences of the political system of constitutional democacy. The reality of individual liberties is the only reliable criterion that differentiates the two political systems, since the institutional apparatus of both government, assemblies, elections, parties, bureaucracies have become stereotyped to the point of identity. Recognition or nonrecognition of fundemental guaranties are closely related to the ideological telos of either system. In the constitutional democracy they crystallize the supreme values of human self-realization and dignity. In the communist states they are denied legitimacy not only because they may function as foci of opposition against monolithic power but also because they could obstruct the ideology of economic planning under collectivism. The idelolgical foundation and functional purpose of classical fundamentalism underwent a fa -reaching transformation in the Marxian society. The Russian Revolution preaches and practices the primacy of the collectivity over the individual. Instesd of being "inalienable" interpreted as obligations of the state toward the laboring masses. The attitude of Marxism in the U.S.S.R. and the so-called "People's Democracies" toward fundamental liberties is altogether different. All constitutions in the Soviet orbit contain elaborate statements on fundamental rights of the citizens, characteristically coupled with provisions concerning their duties toword the state and the community. Civil liberties in the classical sense, which the constitution of communist states merely summarizes, are overshadowed by the new social and economic rights. The guaranty of the civil rights proper is hedged in by the rubber clause that they are guaranteed " in conformity with the interests of the working class" and "in order to strenghthen the socialist system". Especially political rights of the suffrage are converted into compulsory mass participation in the political process directed by the party hierarchy. And its single party (communist party)was the straight negation of all political liberty. (2) Patterns of Governament In the modern democratic-constitutional state the essence of the power process consists in the attempt to establish an equilibrium between the various competitive plural forces within in state society, with due regard to the free unfolding of the human personality. In communist state, social control and political power are monopolized by a single power holder, subordinating the individual to the ideological requirements of the group domination the state. The basic difference between the two political systema conists in whether, in the various stages of the governmental process, political power, is distributed among and shared by several independent power holders or whether political power is concentrated in and monoploized by a single power holder, be it an individual person, and assembly, or a party. Assembly government system revived in the Stalin constitution of 1936 in the U.S.S.R. from where it spread, after the Second World War, to all satellite states, as well as East Germany, Red China, North Korea. No communist state fails to conform to this standard pattern. Assembly government, by its own biological laws. easily transforms itself into a regime in which a single power holder exercises the monopoly of political power. This may well be the intrinsic reason for the communist preference. By necessity the communist state is a plice state. Another indispensable instrument of social control is the single party. The governmental techniques of a communist regime are necessarily authoritarian. But the regime does much more than exclude the power addressees from their legitimate share in the formation of the will of the state. It attempts to mold the private life, the soul, the spirit and the mores of the citizens to a dominant ideology that the various instrumentalities of the power process force on the non-conformists.