제1공화국 헌법위원회제도의 형성 - 사법제도 형성의 한 단면 -

The Formation of the Constitution Committee of the First Republic - An Aspect of Formation of the Korean Judiciary System -

The idea of Constitution Committee as stipulated in the Korean Constitution of 1948(so called 'Geonguk Constitution') was triggered by the introduction of the system of American judicial review, and completed by compromise with efforts to block it from being adopted. Such various conflicts were revealed in the process of making the Constitution Committee, as between legislature superiority and judicature superiority, separation-of-powers theory and legal stair theory(of H. Kelsen), and American legal thoughts and continental legal tradition. Especially, conflict of interests between legal circles and politicians lies in the core of them. The former supported judicial review system strongly from the start to the end, while the latter took a stand against it. Constituent Assembly legislators accepted the idea of Constitution Committee instead of judicial review system which a scholar, Yu, Jin-oh(兪鎭午) originally invented. But they changed the original form greatly, considering interests of legislature and judicature, and compromising both of them. Regretfully, the rationale of the system, that is protection of minority, was throughly disregarded by all of them in the process of the compromise. I think that it was why the Constitution Committee did not work efficiently during the First Republic period.