權力分立의 時代的 變遷小考 = A Study on the Separation of Powers

다국어 초록 (Multilingual Abstract)

The theory of the separation of powers has changed much in its significance with the transition of times. In the age of constitutional state of citizens, which was regarded as so to say night-guard state, the function of the state was restricted passively within the security of individual liberties. At that time, the legislation meant the enactment of general and abstract norms, while the execution and the judicature meant the individualization and concretion of the general and abstract norms.
The unification between the legislation and the executive by political parties, as we see today, was not yet carried out. Therefore, the principle of the separation of powers was maintained strictly on the whole, in the separation of both functions and organs. However, the progress of the economic system of non-interference capitalism has brought about various social problems, on which the state could no more look with indifference, as it did in the past.
The functions of modern state. especially in the field of execution, have been magnified, and accordingly the phenomena of trust legislation and disposal act have appeared. Hereupon, the actual difference between legislation and execution has diappeared. And the modern state has become a mass-democratic state owing to the expansion of suffrage, with the advance of democracy. And it necessarily caused the rise of political parties as a means which enables mass people to form the national intention.
Therefore, in the modern state, the legislation and the executive are unified through the activities of political parties. If so, where is the significance of the separation of powers?
I grasped it mainly out of the following two point of views.
a) Intraorgan separation of powers as in the bicameral system and in the system of coleg' ialjudgment,
b) Vertical separation of powers as in the system of plural parties, of pressure groups and of individual liberties.