근대 입헌주의 수용의 비교헌법사-개화기 ‘원시 헌법문서’분석을 중심으로-

Abstract

“When did we Koreans first build a modern constitutional state?” The question has recently provoked heated arguments among Korean scholars. In order to answer the 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. In Chapter I, I trace the origin of Korean constitutionalism and find that the Observation Report of Meiji Japan(1881) and some editorials of the Hansong Sunbo(1884) played important roles. In Chater II, I compare the 14 articles of Cheongryeong with the similar documents of Meij Japan. Although Cheongryeong has, in spite of its partial similarities to Japanese documents, the substantial originality as a constitutional charter, the “3-day paper cabinet” of the failed coup can hardly be taken for the first constitutional government of Korea. In Chapter III, I find out clear similarities between 14 articles of Hongbeom and Reform Request of Envoy Inoue(1894). After all the efforts to establish a modern constitutional state, Hongbeom, suffered the lack of sovereignty, can't be considered as the first “Korean” Constitution. In Chapter IV and V, I analyse the 6 articles of Heonyi, the 10 articles of Kukje and find that both documents can't be taken as the beginning of the Korean constitutionalism, because the former is lacking “state-governmental” character, the latter is lacking “citizen-democratic” character. In Chapter VI, I conclude that the very blooming of the “constitutional flower” was Ymsiheonjang (Provisional Charter)(1919) of the Shanghai Provisional Government, and describe the “provisional” features of the early Korean constitutionalism as “constitutionalism without sovereignty,” “democracy without demos” and “separation of powers without state-power.”