입헌주의 맹아기 제 헌법문서의 사법조항 분석 - 개화기 원시 헌법문서와 임시정부 헌법 준비문서를 중심으로 -

Abstract

The first “official” Korean Constitution, which was made in June and July 1948, by some groups of congressmen guided by Chin-O Yu, can be characterized as having been founded upon a deep distrust in the judiciary. First, it adopted a 10-year term appointment of judges, instead of a life appointment. Second, it benchmarked a European-type constitutional court system, instead of an American-type judicial review system. I, as a constitutional historian, consider such “anti-judiciary” tendencies as being deeply rooted in our constitutional experiences during the enlightenment period and the colonial period. We cannot find any meaningful effort to build a modern independent judicial system in such “primitive” constitutional documents as Jeongryeong(government order) of 1884, Hongbeom(great norm) of 1895, Heonui(petition to emperor) of 1898 and Gukje(imperial constitution) of 1899. Such “provisional” constitutional documents as Imsiheonjang(provisional charter) of 1919 and Geongukgangryeong(principles and plans for national reconstruction) of 1941, drafted by So-ang Jo, do not even contain any judiciary clause. In Imsiheonbeop(provisional constitution) of 1925 and Imsiyakheon(provisional draft constitution) of 1927/1940, the judiciary was simply stated in principle. Imsiheonbeop(provisional constitution) of 1919 and Imsiheonjang(provisional charter) of 1944 provided a separated chapter for the judiciary, under the circumstance of independence movement, however, more attention was paid to the provisional congress and even the limited provisions for the judiciary could not take effect.

The first “official” Korean Constitution, which was made in June and July 1948, by some groups of congressmen guided by Chin-O Yu, can be characterized as having been founded upon a deep distrust in the judiciary. First, it adopted a 10-year term appointment of judges, instead of a life appointment. Second, it benchmarked a European-type constitutional court system, instead of an American-type judicial review system. I, as a constitutional historian, consider such “anti-judiciary” tendencies as being deeply rooted in our constitutional experiences during the enlightenment period and the colonial period. We cannot find any meaningful effort to build a modern independent judicial system in such “primitive” constitutional documents as Jeongryeong(government order) of 1884, Hongbeom(great norm) of 1895, Heonui(petition to emperor) of 1898 and Gukje(imperial constitution) of 1899. Such “provisional” constitutional documents as Imsiheonjang(provisional charter) of 1919 and Geongukgangryeong(principles and plans for national reconstruction) of 1941, drafted by So-ang Jo, do not even contain any judiciary clause. In Imsiheonbeop(provisional constitution) of 1925 and Imsiyakheon(provisional draft constitution) of 1927/1940, the judiciary was simply stated in principle. Imsiheonbeop(provisional constitution) of 1919 and Imsiheonjang(provisional charter) of 1944 provided a separated chapter for the judiciary, under the circumstance of independence movement, however, more attention was paid to the provisional congress and even the limited provisions for the judiciary could not take effect.