한국 근현대헌법사의 시기구분론- 12·3, 그 6시간의 의미 - = The Periodization of Modern Korean Constitutional History: The December 3 Martial Law Declaration andSubsequent Six Hours

다국어 초록 (Multilingual Abstract)

The confusion revealed during the subsequent resolution process, alongside the divided assessments of the declaration of martial law on December 3, 2024, and the ensuing six hours of abnormal state conditions, demonstrates a lack of even minimal shared understanding among the public regarding the constitutional history of Korea. This is due to the fact that our understanding of constitutional history, or more precisely, our understanding of the periodization of our constitutional history, has failed to keep up with the development of the constitutional reality. Conventional periodization of Korea's modern constitutional history excludes the period from the provisional government constitutions, which should be the starting point of Korea's modern constitutionalism, to the establishment of government after liberation, and sequentially numbered the republics from the First Republic to the Sixth Republic, following changes in each regime after the 1948 Constitution was enacted. However, this approach serves only a decorative purpose, hindering substantive understanding of the actual constitutional developments in each period; it equates the current constitutional system established in 1987, a watershed moment in constitutional history, with the previous, incomplete constitutional systems, preventing proper evaluation; it also carries significant problems, such as allowing specific events under the current Constitution, particularly like the December 3rd Emergency Martial Law incident that reversed historical progress, to be simply historicized. Therefore, a new periodization for Korean constitutional history is required to achieve a proper understanding of constitutional developments. Accordingly, this paper proposes: 1) setting the starting point of modern Korean constitutional history at the March 1st Movement of 1919 and the Provisional Constitution of April 11th of the same year; 2) dividing the period into two phases based on the normative force of the constitution—before and after 1987; or 3) dividing it into four periods based on the actual practice of constitutional government: the preparatory period (1919–1948), the experimental period (1948–1961), the dark period (1961–1987), and the active period (1987–present). This approach to modern Korean constitutional history will also help properly understand constitutional crises like the December 3 Incident and set the appropriate path for addressing the crisis.