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Verfassunggebung und Verfassungsänderung in Korea : insbesondere in bezug auf die erste Änderung der Juni-Verfassung : 한국에서의 헌법제정과 헌법개정 : 6월헌법의 제1차 개정과 관련하여
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- Authors
- Issue Date
- 2010
- Publisher
- 서울대학교 법학연구소
- Citation
- 법학, Vol.51 No.3, pp. 63-84
- Keywords
- Constitution Making ; Constitutional Amendment ; Realization of Constitution ; June-Constitution ; Form of Government ; Political Culture ; Constitutional Amendment without factual constraints ; Revision of the Swiss Federal Constitution of 1999 ; Greek constitutional amendment of 2001
- Abstract
- The main purpose of constitution making and constitutional amendment in the
constitutional history of modern Korea has been the extension of the president's
term in office. As the new regimes without democratic legitimacy called themselves
according to the ordinal number of republics, so were the names given to
the constitutions in the same way. This practice of naming constitutions has become
seldom with democratization. We can understand the Korean constitutional
history as process of overcoming authoritarian system, so it seems legitimate to
give two democratic constitutions of 1960 and of 1987 special names of
April-Constitution and June-Constitution.
The June-Constitution of 1987 is the first constitution with stability and normative
power, though it was a result of constitutional amendment through the procedure
prescribed in constitution. It seems, therefore, possible that the new constitution
made in the system transition can be seen as constitution making in spite
of the procedural way of constitutional amendment. So long as a new constitution
in the future doesnt destroy the fundamental basis of constitutional democracy it
will be only an amendment of June-Constitution.
The object of the ongoing discussion about the constitutional amendment encompasses
almost all areas of the constitutional law. But the focus and the main political
drive of the discussion lies in the form of government. None of the classical
form of government like presidential, parliamentary and hybrid system can in itself
promise a success. The more important thing is the question, whether the political
culture is mature enough and the governmental form matches the political culture.
Parliament which functions well and is willing to compromise, democratic and stable
party system and the consensus on the form of government belong to the political
culture. It is doubtful, if a constitutional amendment of the governmental
form could strengthen theses preconditions. A model example of the constitutional
amendment without factual constraints was the revision of the Swiss Federal
Constitution of 1999 which came to a conclusion after 34 year long debate.
- ISSN
- 1598-222X
- Language
- German
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