통일 및 관련법제의 쟁점과 전망 - 남북관계의 변화와 영토조항 및 북한주민의 법적지위 논쟁을 중심으로- = Development in South-North Korean Relationship and Constitutional Problems of Territorial Clause and North Koreans’ Legal Status

다국어 초록 (Multilingual Abstract)

According to our constitution, territorial clause set unification clause related to peaceful unification principle starting from the 4th republic and because of that it causes contradicting problems with unification clause thus first norm became disqualified. Our constitution first used the word “unification” in the 4th republic constitution (1972) suggesting that not only it was “provisional constitution” but also it suggested the principle of peaceful unification in methods and in contents. The 5th republic constitution (1980) also succeeded to the articles concerning constitutional unification relation and some articles were added or abolished.
The 6th republic constitution(1987) generally succeeds to the contents of the 5th republic constitution. Especially under the Article 4 establishing ‘peaceful unification clause’, it reads “The Republic of Korea shall seek unification and shall formulate and carry out a policy of peaceful unification based on the fundamental principles of liberal democracy.” This kind of unification provision implies that the constitution recognizes the peaceful unification as a national and state goal. The unification clause logically contradicts with the territorial clause because it preconditions acknowledgement of division of Korean peninsula. Because of the unification clause, the normative meaning of the territorial clause has changed.
Nowadays, the relationship between South and North Korea has changed from hostile relationship to companion relationship toward unification. Especially since June 2000, upon South-North summit meeting which was held after 55 years since the partition of the Korean peninsula, South and North Koreas are heading for “unification era” of reconciliation and cooperation leaving “division era” of hostility and confrontation. Therefore, problems concerning South-North relationship should be explained based on logic corresponding to unification era thus legal approaches about problems concerning South-North relationship also needs different viewpoint for new growing relationship and different thought for unification. In order to solve legal problems concerning application of our territorial clause based on constitution, new approach to territorial clause is needed.
In this paper, territorial clause of unification era and North Koreans’ legal status are discussed. First, normative problems of territorial clause depending on changes of South-North relationship will be focused. Second, based upon this argument, North Koreans’ legal status problems will be discussed.
In Short, unification–related articles were added first to the constitution under the 4th Republic and until now they have been developed as provisions related to unification. According to this, government’s policy towards North Korea and unification policy have been conversed up to now. Therefore, new approach upon territorial clause is needed. In order to do so, it is necessary to cast off cold war thought that existed in the past. Establishment of unification policy and its execution should not be blocked by the matters related to interpreting territorial clause.

다국어 초록 (Multilingual Abstract)

According to our constitution, territorial clause set unification clause related to peaceful unification principle starting from the 4th republic and because of that it causes contradicting problems with unification clause thus first norm became disqualified. Our constitution first used the word “unification” in the 4th republic constitution (1972) suggesting that not only it was “provisional constitution” but also it suggested the principle of peaceful unification in methods and in contents. The 5th republic constitution (1980) also succeeded to the articles concerning constitutional unification relation and some articles were added or abolished.
The 6th republic constitution(1987) generally succeeds to the contents of the 5th republic constitution. Especially under the Article 4 establishing ‘peaceful unification clause’, it reads “The Republic of Korea shall seek unification and shall formulate and carry out a policy of peaceful unification based on the fundamental principles of liberal democracy.” This kind of unification provision implies that the constitution recognizes the peaceful unification as a national and state goal. The unification clause logically contradicts with the territorial clause because it preconditions acknowledgement of division of Korean peninsula. Because of the unification clause, the normative meaning of the territorial clause has changed.
Nowadays, the relationship between South and North Korea has changed from hostile relationship to companion relationship toward unification. Especially since June 2000, upon South-North summit meeting which was held after 55 years since the partition of the Korean peninsula, South and North Koreas are heading for “unification era” of reconciliation and cooperation leaving “division era” of hostility and confrontation. Therefore, problems concerning South-North relationship should be explained based on logic corresponding to unification era thus legal approaches about problems concerning South-North relationship also needs different viewpoint for new growing relationship and different thought for unification. In order to solve legal problems concerning application of our territorial clause based on constitution, new approach to territorial clause is needed.
In this paper, territorial clause of unification era and North Koreans’ legal status are discussed. First, normative problems of territorial clause depending on changes of South-North relationship will be focused. Second, based upon this argument, North Koreans’ legal status problems will be discussed.
In Short, unification–related articles were added first to the constitution under the 4th Republic and until now they have been developed as provisions related to unification. According to this, government’s policy towards North Korea and unification policy have been conversed up to now. Therefore, new approach upon territorial clause is needed. In order to do so, it is necessary to cast off cold war thought that existed in the past. Establishment of unification policy and its execution should not be blocked by the matters related to interpreting territorial clause.

참고문헌 (Reference)

1 제성호, "황장엽 비서의 정치적 망명사건과 국제법" 1997

2 권영성, "헌법학원론" 법문사 1990

3 김철수, "헌법학개론" 박영사 1988

4 권영설, "헌법의 국민조항과 국적법" (7월) : 1997

5 도회근, "헌법과 통일문제" 울산대학교 5 (5): 1996

6 김도창, "헌법과 국가통일문제" 서울대 법학연구소 8 (8): 1966

7 나인균, "한국헌법의 영토조항과 국적문제" 헌법재판소 5 : 1994

8 허영, "한국헌법론" 박영사 1998

9 김철수, "한국통일과 통일헌법제정문제" 헌법재판소 3 : 1992

10 최대권, "통일의 법적 문제" 법문사 1990

11 이장희, "통일시대를 대비한 국적법 개정방향" 1997

12 "통일시대, 민주평화통일자문회의 사무처, 9월호"

13 양건, "입헌주의를 위한 변론" 고시계 1987

14 통일연구원, "이명박정부 대북정책은 이렇습니다" 통일연구원 2008

15 노영돈, "우리나라 국적법의 몇 가지 문제에 대한 고찰" 대한국제법학회 41 (41): 1996

16 신영석, "역대정권의 통일정책 변천사" 평화문제연구소 2008

17 유진오, "신고헌법해의" 일조각 1959

18 "서울고등법원 12. 8, 94 구 16009."

19 통일부, "상생과 공영의 대북정책" 팜플렛

20 서재진, "상생·공영으로 남북경제공동체실현" 민주평화통일자문회의 사무처 (9월) : 2008

21 김찬규, "북한탈출자의 난민자격과 그 처우에 관한 고찰" 대한변호사협회 (214) : 1994

22 장명봉, "북한주민의 법적지위 문제의 고찰-대법원 판결(이영순 사건)과 관련하여" 법조협회 1998

23 "북한인권백서 1997" 민족통일연구원 1997

24 이상철, "북한이탈주민의 보호·지원법제 현황 및 문제점" 한국법제연구원 (12) : 1997

25 박기갑, "북한이탈주민(탈북자)의 법적 지위에 관한 연구" 한국외교협회 (42) : 1997

26 김찬규, "북한국적자의 입국과 출입국관리법, 「법률신문」, 2월 5일"

27 제성호, "북한 탈출동포의 법적 지위와 처리방안" 대륙연구소 5 (5): 1994

28 김철수, "문익환목사 방북, 좌우대결 구실 안된다(대담)" (5월) : 1989

29 "대판 1996. 11. 12, 96 누 1221."

30 "대판 1961. 9. 28, 4292 행상 48."

31 제성호, "남북한 특수관계론:법적 문제와 그 대책" 한울 아카데미 1995

32 유병화, "남북한 UN가입과 한국통일의 법적 문제" 통일원 3 (3): 1991

33 석동현, "국적법의 개정방향" 서울국제법연구원 4 (4): 1997

34 권영성, "국가보안법, 왜 개폐를 미루는가" 1989

35 "The Nottebohm Case, ICJ(Liechtenstein v. Guatemala, 1955)"

36 "BverfGE 18"

37 "BVerfGE 36"

38 허영, "2008 통일백서" 통일부 2008

39 노영돈, "1997년 국적법 개정안의 검토" 서울국제법연구원 4 (4): 1997