안정과 변동

Abstract

Societies are constantly changing, and legal systems are always organized in the context of those changes. Constitutions have a dual nature in the context of social change. On the one hand, it seeks to remain stable in the face of social change (stability). This helps maintain a normative and institutional core that should not be easily altered in response to social changes. On the other hand, it also aims to adapt to social changes (changeability). Constitutions themselves recognize the possibility of amendment and are open to various interpretations and applications. The two may seem contradictory, but both are essential to maintaining the normative power of a constitution.
 In some cases, however, these attributes of a constitution may be unjustifiably or unnecessarily overemphasized. For example, an overemphasis on stability during a time when the constitution should be adapting to social change can cause it to fall behind. This can include legitimate amendments or laws that fail to meet the overly stringent requirements of the amendment process or are declared unconstitutional by the constitutional court. However, changeability can become problematic as well when it is unfairly exercised. This can occur when a constitution is misinterpreted or improperly amended.
 This article examines these cases and proposes the dualization of the constitutional amendment process, eternal clauses, and the introduction of constitutional review on constitutional amendments as remedies for the problems. Although these measures are not perfect solutions, they will help preserve the rational core of constitutional stability and changeability while curbing the unwarranted exercise of each attribute.
 Although there has been considerable debate about the current constitution, the issue of revising the constitutional amendment process has received less attention. However, to improve our constitution in the future, it is essential to pay attention to the amendment process. Revising the process for amending the constitution is a crucial task in constitutional revision.