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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서울대학교 법학연구소
법학, Vol.49 No.3, pp. 40-75
사회민주주의법치주의민주적 기본질서헌법재판소Liberal democracysocial democracydemocratic basic orderLiberal democratic basic order
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.
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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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