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The Phased Revision of the Constitution for the Unification Constitution

  • DONG-A LAW REVIEW
  • 2015, (66), pp.205-252
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Manhee Jeong 1

1동아대학교

Accredited

ABSTRACT

Since the Constitution of 1987 was ratified, debates and research results about the unification constitution have been mainly focused on governmental forms, political structures, and basic rights protection, all of which will be primary parts of the new constitution after the reunification of Korea. However, researches and studies about constitutional matters that will be occurred in the process of the reunification are also necessary to prepare for considering the unification of the constitution. Although reunification should be accomplished by agreement under article 4 (peaceful reunification) of the current constitution, there might be various ways to achieve unification by agreement as well as various methods of revising the constitution for completed reunification, such as a one-time revision, a phased or gradual method of revision, or establishment of a new constitution. Thus, this study will focus on the constitutional issues that will emerge in the process of the reunification of South and North Korea, especially those that will necessitate the revision of the constitution for providing a legal basis for “unification of the agreement” which will be the most important issues in the reunification process. This study will also suggest a way to accomplish the phased revision of the constitution during the unification process, a way that has two steps based on the principle of unification by agreement under the South Korean constitution like the way used for the reunification of Germany, which is the most feasible case in Korea. In the first step of the revision of the constitution, it is necessarily to establish a provision about “unification of the agreement” and its interim measures during the reunification process. Moreover, the constitutional amendment clause of the current constitution must be reviewed because it makes revision of the constitution difficult. The second step of the revision needs to address the expansion of the effect of the South Korean constitution to North Korea by revising a part of the current constitution, not establishing a new constitution. In doing so, it is necessarily to codify essential elements of “the unification of the agreement” in law. There might be a discussion about adopting the federal system, but this should be decided with national consensus and considered at a later date so that sufficient time will have passed after establishing the unification constitution. Some have raised concerns regarding the form of government that would be adopted after reunification. Both a presidential system and a parliamentary system with divided powers will be considered for the reunified Korea, and they both have pros and cons. The parliamentary system might be better for the social integration of South and North Korea; however, the presidential system is better for ensuring the stable and effective progress of the unification. Hopefully, whichever governmental form is adopted into the unification constitution will be decided by national referendum under national consensus, as well as through the enactment of the new unification constitution of Korea after achieving the social and economic integration of South and North.

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