헌법의 연속성과 변화에 관한 담론 -전통과 사회적 폐습을 중심으로-

Abstract

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)...