헌법의 연속성과 변화에 관한 담론 -전통과 사회적 폐습을 중심으로-
Continuity and Change in Constitution -With the Particular Focus on the Traditional Culture and Bad Social Usages-

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서울대학교 법학연구소
법학, Vol.44 No1 pp.86-106
사회적 폐습헌법 지속성(동일성)자유민주주의의 틀
Continuity is a major feature of the living constitution. The constitutional
continuity is reinforced by the difficulty and infrequency with which the
constitution changes in the form of its amendment and/or its evolution. Through
its institution of constitutional(judicial) review, the constitution with a measure
of consistency regulates social changes in terms of their being constitutional or
unconstitutional. Continuity is an important attribute of the traditional culture as
well. In Korea, however, the traditional culture has acquired an added continuity
with the constitutional backing: the constitution provides that “the state shall
strive to uphold and develope the traditional culture and to promote national
culture.”(Article 9) Therefore the state is constitutionally required to “uphold
and develope the traditional culture” apparently in the first place through an
exercise of its legislative policy-making power and secondly through an
excercise of judicial review power.
Accordingly the Constitutional Court in exercising its constitutional review
power has an obligation to provide due respect to any legislation when it
involves cultural features that are truly traditional cultural and when it is a
rational legislative measure designed to uphold and develope the traditional
culture. The traditional culture legislatively to uphold and develope is an
instance of “the public welfare” in the Article 37 Section 2 which the Court
has to balance against the fundamental rights or freedom in issue in
considering the constitutionality of a legislation. The constitution of Korea also
provides for the elimination of “bad usages”(the Preamble of the Constitution)...
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 44, Number 1/4 (2003)
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