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A Study on the Theory of Separation of Powers

  • Public Land Law Review
  • Abbr : KPLLR
  • 2019, 85(), pp.365-387
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law
  • Received : January 31, 2019
  • Accepted : February 15, 2019

Lee Young Woo 1

1목원대학교

Accredited

ABSTRACT

Civilian law-enforcement states that set the people's freedom and equality as the most valuable ideology adopted separation of power as the organizational principle of governance in order to guarantee the people's freedom. Finding effective ways to prevent power from being concentrated in one place and decentralize power is of interest to human political groups. The power limit and separation seem to be working with a strong consciousness of human rights protection based on the principle of natural law. The theory of separation of powers is a constituting principle of the governing structure, which allows the division of state power to guarantee the freedom and rights of the people and disperses these powers to separate and independent state organs, thus preventing the concentration of state power to a certain individual or group, as well as maintaining the balance of power among power-sharing. The principle of separation of powers, which has the same root as constitutionalism, has been institutionalized as a means of guaranteeing people's freedom in a civil and legal state under the ideology of liberalism. Classical power separatism divided national power into legislative and judicial administration, and only the ruled or Congress, which was identified with the people could enact legislation with general abstraction. The administrative and private law were bound by the three powers' mutual checks and balances to guarantee the people's freedom by preventing concentration of power, where the nation's activities were limited to the passive function of maintaining individual freedom and order, so that institutional and functional divisions could be maintained to some extent. However, the passive law governed country of the 18th and 19th centuries changed into an active law governed country of the 20th century, and the principle of separation of powers brought about many changes in its meaning and contents. The theory of separation of powers under social and economic conditions called for greater expansion and deepening of the problem area than classical separation of powers. Unlike the passive state function of the past laissez-faire era, modern times become an administrative country with active national function requested, and the question of the significance of the existence of the power separation system under the Constitution of the modern state and the question of how much power separation will work as the governing organizational principle of the modern state and whether there is a chance of survival in the future. Therefore, how to harmonize this division of power with the concentration of power and how to achieve balance and stability systematically are modern tasks of separation of power.

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