법학과 사회과학-학제 연구방법론의 모색 : 제2부 ; 제5주제 : 독일헌법상 정당조항과 그 한국적 이식 -비교법사회학적 접근-
The Party Clause of the German Constitution and its Transplantation to Korea -A Comparative Socio-Legal Approach-

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서울대학교 법학연구소
법학, Vol.41 No.3, pp. 115-146
독일의 정당국가론독일헌법 제21조제3공화국 헌법비교법사회학
The constitutions began to mention the phenomenon of political parties in

the middle of the 20th century. Article 7 of the Korean Constitution of 1962

which regulated political parties had its root in Article 21 (party clause) of

the German Constitution of 1949. This will exemplify what role the

transplantation of the western constitutions to the developing countries

played for the political modernization.

In order to analyze the function of this transplantation, it will not be

sufficient to compare the similarities and differences between the two

articles. A methodological consideration of comparative law research as to

the legal transplantation seems to be necessary. At first it is important to

recognize that the law is not independent from the social development and

that not only the 'law in books' but also the 'law in action' should become

the object of the comparison. In the epoch of codification the legal

transplantation doesn't take place gradually and simultaneously with the

process of assimilation. The transplantation is only the beginning of

assimilation, which could also end in a negative one. This peril is greater,

when a norm is transplanted as a means to a social and political


As to the situation of the political parties in West Germany of 1949,

democratic mass parties had been quickly reconstructed and began to change

themselves into non-sectorial parties (Volksparteien). In 1950's South Korea

lacked in such democratic mass parties: the ruling party was a state...
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 41, Number 1/4 (2001)
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