한국 민주화 과정에서의 헌법(학)의 과제 : Toward Implosion of Jurisprudence = Constitutional Interpretation in Democratizing Korean Society

다국어 초록 (Multilingual Abstract)

Even though we can't deny the thesis that the main element of constitutionalism he the principle of the rule of law, esp. rule of the preexisting constitutional law, we can imagine some other situation that some political ideas or values may lead the ways of interpretation of that constitution, or make new constitutional rules, which can he applied to transform the exisiting ways of political lives. This paper wants to criticize present status of making academic theories on the Constitution, which are so based mainly on strict positive interpretation of the Constitution that the substantial parts of academic ways of thinking are subordinated by the decisions of the Constitutional Court.
To open some fora for discussions on such possibilities mentioned above, is the other purpose of this paper.
If we can define today's raison d'Etat with the principle of human dignity, from which every human rights can be derived, we can claim that the constitutional law shall be construed to go far toward practicing these ideals and human rights. But there are so few efforts to theorizing such construction can be found in korean society of legal academy. Rather we can easily find out reversed trends: constitutional liberties and properties are interpreted to enforce neo-institutionalistic market system, which might result in substantial deprivation of social and political citizenship as well as economic rights. Traditional and posivistic conception of fundamental rights are so pupolar in that academic world that new trends of human rights can't be incorporated into the ruling scope of the Constitution, because they are not based on the individualistic and/or individuating conception as the rights of properties.
The needs for implosion of the academic society on the constitutional law are inevitable when we think of such biased trends, which cast some obstacles on the ways of practicing the ideals of human dignity and human rights. The needs to rewrite everyday's lives and desires in the words of constitutional rights, the needs to replace the value of economic efficiency with that of public virtues, and the efforts to reestablish the ideals of tolerance and caring into constitutional principles instead of that of individualistic rights of exclusivist nature, shall be the main concern of academic inverstigation and research. And just when, with aid of these studies, we can significantly aggregate and politicize everyday's desires of the people, and when we can systemize this way of politics in the name of constitution, we can call our society as "democratic one".

목차 (Table of Contents)

• Ⅰ. 들어가면서
• Ⅱ. 민주화 이전의 헌법현실
• Ⅲ. 헌법(학)의 과제를 찾아서
• Ⅳ. 결론