南北韓 憲法의 比較 : 基本權과 權力構造를 中心으로 = The Comparision of the Constitution of South and North Korea

다국어 초록 (Multilingual Abstract)

This paper aims to make clear the fundamental differences between the constitutions of two political systems. Republic of Korea and North Korea. The constitution of the Fifth Republic of Korea was proclaimed and became effective on October 27, 1980. A new socialist constitution for the “Democratic People Republic of Korea (DPRK) was adopted by the Firth Supreme People's Assembly at its first session on December 27, 1972. The new socialist constitution, consisting of 11 Chapters and 149 articles, differs significantly from the old constitution.
First, regarding basic human rights there are two principles. One is that the rights of citizens under the law are only those which the state choosers to provide, and the other is that all human beings have certain natural or God-given rights(the “rights of man”) on which the state must not infringe. The provisions of the ROK constitution regarding human rights are based on the later principle.
Article 9. States that all citizens shall be assured of respect for their human worth and dignity and shall have the right to the pursuit of happiness, and that “It shall be the duty of the state to confirm and guarantee the fundamental and inviolable human rights of individuals. It is further stated that the human dignity of the people takes precedence over all state power and state interests.
The North Korean Constitution also contains provisions on basic rights. However they are not regarded as inherent or “natural” rights but only as rights conferred by citizenship. Moreover, there is a wide gap between constitutional norms and actual practice.
In Chapter 4, the Socialist Constitution Specifies the basic rights of citizens. Article 49 states: In the DPRK the rights and duties of citizens are based on the collectivist principle of ‘one for all and all for one’”.
The provisions on individual freedoms are very brief. There is no mention of a right to challenge the legality of arrest of detention (habeas corpus) and no limits are placed on the use of confessions as evidence in trials. Freedom of residence and the right to move at will, freedom of conscience and private property are all passed in silence. The right to a speedy trial. the right to seek just compensation from the state, and the right to take legal action against the state are not mentioned.
But economic and social rights are dealt with in more detail. The right to work (Article 56) the right to rest (article 57), free medical are (article 58), the right to education (article 59) and special protection of revolutionary fighters (article 61) are guaranteed.
Second, regarding the formative principle of governmental structure, Republic of Korean Constitution provides the principle of separation of powers, but the socialist constitution the principle of “Democratic Centralism”.
The reality of Democratic Centralism in North Korea is that democracy is understood to be the mass participation in the upper echelon's decision, while the people's originality or identity is disregarded, and that centralism is understood to be the lower organs' obligatory execution of the upper organs' decisions and directives.
The so-called sovereign organ system of the ‘DPRK, is composed of the Supreme People's Assembly, the president of the ‘DPRK, who is the head of state and the representative of state power and the Central People's Committee which is the highest guiding organ of state power and headed by the president.
But all state organs in North Korea are co-ordinated and directed by the president of the ‘DPRK’. It may be said that one of the most striking characteristics of the new governmental structure is the “one-man leadership” or “one-man dictatorship” of the president of the State.

목차 (Table of Contents)

• Ⅰ. 序 論
• Ⅱ. 南北韓 憲法의 成立과 改正
• Ⅲ. 基本的 人權制度의 比較
• Ⅳ. 權力構造의 比較
• Ⅴ. 結 語