미국연방헌법과 한국헌법상의 법률안거부권제도 비교 = A Comparative Study on Veto Right Systems in the American Federal Constitution and the Korean Constitution

다국어 초록 (Multilingual Abstract)

This thesis considers the veto right systems of the American Federal Constitution and the Korean Constitution in the context of Korean people`s interest having grown about the president`s exercising of the veto right about the National-assembly ratified bill on the appointment of an independent counsel to investigate the remittance to North Korea during the early period of the Participation Government(a nickname for President Roh Moohyun`s government) in 2003. In the history of our constitution, president`s veto power had been exercised on 71 bills from the Constitution-making Assembly period to the 17th Assembly period (except the period of the 2nd Republic which lasted less than one year with a parliamentary cabinet system). And presidential veto power has been generally perceived as the last fortress of the power of the president as the executive head of State against the Assembly in a political situation where the opposition party outnumbers the ruling-party. It is found that now in 75 president-centered countries of the world, presidential veto power is used for checks and balances between the Legislature and the Administration. Originally presidential veto power in the Constitution, which originated from the reflection on the state legislatures` unlimited exercising of power in 1780`s, was based on the constitutional drafters` concern that without a self-defensive right, the administration would become helpless because of the legislature`s arbitrary exercising of power. In other words, the veto right used to be defined as the only self-defensive weapon in the Constitution. Nowadays, however, the reality is that a direct or indirect bill-offering right is given to the Administration, so the veto power has greater significance as a powerful means of control checking the Legislature rather than as a device described in the original definition. Such a presidential veto power originated from the American president-centered system, but the veto power system of our Constitution is not the same as that of the U.S.A., and also their backgrounds are different, so we need to have cross-legal comprehension of the constitutional veto right systems of both countries. To do so, this thesis considers the prescriptions, histories, significances, legal characters, types(exercising methods), requirements for exercising and real cases of veto power in both countries. In our Constitution, the principle of separation of powers has two tasks to do: first, forming, rationalizing, stabilizing the power of State and seeking its unity and rationality; second, seeking the assurance of people`s freedom by preventing concentration of power. We can see `checking the power by power` to actualize legalism based on the principle of separation of powers as the aim of the veto power, which is a self-defensive means against the excessive power or interference of the National Assembly. Especially in a political situation where the opposition party outnumbers the ruling-party, the Assembly, which monopolizes the right of voting on bills, should not exercise arbitrariness, and also the president should fairly exercise the veto power based on objectivity and rationality, with the sensibility of a democratic republic to give the Legislature time to consider, only when the Assembly abuses its legislative right or makes unjust laws against the Constitution. Therefore, to overcome the crisis of parliamentarianism, an unsolved permanent problem of our constitutional history, the right of veto should move toward the ultimate point: the control through balancing of the interests of the majority and the minority, not by the major party within the Assembly, that is, the constitutional sense of agreement to find a beautiful balanced point of mutual interests.

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