近代 立憲主義 成立史 硏究 - 立憲主義의 西歐的 原型과 獨逸的 變容

“Constitutionalism” : Its Western Origin and German Variants

  “When did we Koreans first build a modern state?” The question has recently provoked heated arguments among Korean scholars. In this article, I make a comparative historical analysis from the viewpoint of Western “constitutionalism.” First, I clarify such distinctive features of modern constitutionalism as legitimation and limitation of state power, guarantee of human/fundamental rights, and making of written constitution. Then, I trace the English, the American, and the French experiences of constitutionalism respectively. Second, I analyze the German “constitutional monarchies” that endured over 100 years and point out several characteristics that distinguished German variants from Western origin, i.e., oscillation or dualism between king"s and people"s sovereignty, institutionalization of king as a Staatsorgan, power-sharing between the royal and the parliamentary, unsatisfactory guarantee of positive-statutory rights, etc. Lastly, in order to answer the above question, I examine some “ur-constitutional” documents in the late 19th century of Korea, such as Cheongryeong (Governmental Order)(1884) of the Kapsin Coup, Hongbeom(Great Norm)(1895) of the Kabo Reform, Heonyi(Six Articles[Charter])(1898) of the Independence Club, Kukje(State Institution)(1899) of the Taehan Empire. The conclusion is that these documents cannot be taken as the beginning of the Korean constitutionalism, and that the very blooming of the “constitutional flower” was Ymsiheonjang(Provisional Charter)(1919. 4. 11) of the Shanghai Provisional Government.