SHERP

민주주의와 법치주의 ; 민주화 이후 한국정치에서 자유민주주의와 법치주의의 충돌
The Relationship between Democracy and the Rule of Law ; The Clash of Liberal Democracy and the Rule of Law in Korean Politics after Democratization

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Authors
강정인
Issue Date
2008
Publisher
서울대학교 법학연구소
Citation
법학, Vol.49 No3 pp.40-75
Keywords
사회민주주의법치주의민주적 기본질서헌법재판소Liberal democracysocial democracydemocratic basic orderLiberal democratic basic order
Abstract
The purpose of this essay is to examine the clash of liberal democracy and the
rule of law in the context of Korean politics after democratization. The essay
consists of three parts. First of all, the author made the argument that the
distinction between liberal democracy and social democracy is not of much
relevance, as both have converged in terms of their ideology and policy-orientation
in Western and non-Western democracies, although both have different historical
origins. In order to confirm such convergence in Korea as well, he briefly
reviewed clauses related to the basic economic order in the Korean Constitution.
Then, although he agrees to the general interpretation that the “liberal democratic
order” and the “democratic order” both of which appear in the Constitution are
almost the same in their meanings, he attempted to show that the former has
strong anti-communist element than the latter and that this legacy still remains
strong, considering the origin of their insertion into the Constitution and the current
legal and political practices. Second, the author examined whether the two
consitutional cases related to President Roh Moo Hyun’s impeachment and moving
the administrative capital from Seoul to Gongju area can be considered the clash of
democracy and the rule of law and, then, came to the conclusion that these cases
should not be considered the serious example of such clash. Finally, he suggested
the argument that an impending clash of democracy and the rule of law is more
likely to appear in the form of the clash between democracy and (neo-) liberalism.
ISSN
1598-222X
Language
Korean
URI
http://lawi.snu.ac.kr/

http://hdl.handle.net/10371/10223
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 49, Number 1/4 (2008)
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