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The History and Theory of the Constitutional Revision
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헌법개정의 역사와 이론

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Type
Academic journal
Author
Journal
헌법재판연구원 헌법재판연구 헌법재판연구 제5권 제1호 KCI Accredited Journals
Published
2018.1
Pages
183 - 220 (38page)

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The History and Theory of the Constitutional Revision
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The current constitution enacted in 1987 has worked as a living criteria for the constitutional life for longer than 30 years, which was a rare experience in comparison with the previous nine constitutions in Korean constitutional history. Considering this point the discourse about the constitutional revision from the outset hitherto seems unusual. This article aims to review the theory and history of the constitutional revision in the background of the recent discourse about it. Two discussing questions were pointed. First, in describing the korean constitutional history the following frame was applied, as enacting and revision of the constitution, pouvoir constituan and pouvoir constitue, limits of the constitutional revision. It should be reviewed if theses frames are adequate theoretical bases to describe the constitutional history. Second, one should pursue a new methodology in order to take into account the necessity and legitimation of the constitutional revision, for the frames enumerated above could not be applied to describe the korean constitutional history. The frames such as pouvoir constituan and pouvoir constitue appeared in the peculiar historical space and time of the French Revolution and at the outset of the immature democratic republic of Germany. It is therefore hard to be generalized and faces obstacle to be applied to korean constitutional history which has delivered a several rounds of ‘good’ and ‘bad’ constitutions. The constitutional revision is a decisive instrument to keep the constitution alive in face of the ongoing social and economic changes. In this context, on the one hand, the constitutional revision could be recognized as necessary, after the other methode of the constitutional change resulted from the interpretation and actualization of the constitution was exhausted, inter alia, through legalization in the congress and judicial review of the constitutional court. On the other hand, the constitutional revision could be legitimate mainly under condition that the constitution itself, its reality and the change of the both should be evaluated throughly, at the same time the perspective interaction of the envisaged constitution revised and its reality be more or less predicted. Based upon this theoretical consideration it requires a more profound discourse about the necessity and legitimation of the revision of the 1987 constitution.

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