현대사회의 변화와 헌법학의 전개와 과제

Abstract

The year of 1987 is the beginning time of democratization and the epochal moment for the constitutional law and constitutional research as well. The constitution was taken root as the universal basic norm in the various spheres of the people’s lives beyond the political order. The constitutional research had to incorporate the social phenomena and problems into the constitutional structure, analyse and evaluate them on the base of the constitutional criteria on the one hand. On the other hand it should have the constitutional law sustain and develop its vitality by actively taking the social changes into the constitutional structure. This is the large point of difference from the former era where there existed a large gap between the constitutional value and norm, as well as between the constitutional norm and reality, so that the research area of the constitution was narrow. The task of the constitutional research after 1987 could be put together as follows. The constitution has to strengthen its character as the universal basic norm. It should actively communicate with the society to work in social context. This could be realized on condition that it understands the characteristics and the structure of realization of the relevant legislation. It could suggest the possible range of the legislation and its limit, and avoid the unconstitutionality in advance. The first obligation to adapt the legislation to the social change lies in the legislative branch. But the constitutional research should lead the evaluation if it would pass over the constitutional hurdle. Today the task of the state is increased and complicated. The participation of the interested parties at the decision making could enhance the rationality and transparency of the project. And it would lesson the burden of the state. But from the point of the constitutional theory it should explain the possible conflict of this structure of decision making with the democratic legitimacy. The principle of the welfare state is yet focused on the minimum standard living. As the welfare policy includes almost all population, it should enlarge its view of the research. The modern society encounters the new problem that the public discourse forms itself with great difficulty because the political idea and identity in the society too much atomized. This is the functional condition of the constitutional law which would be the new challenge to the constitutional research.