한반도평화체제 전환과정의 현실적 한계와 헌법적 쟁점

Abstract

This study reviews the contents to be considered constitutional in the process of establishing a peace system, as well as the declaration of an end to the war in the Korean Peninsula and the conclusion of a peace agreement, and seeks constitutional issues such as the method of the agreement, the issues of the parties, and the approval of North Korea as a nation and the solutions. The main contents are various constitutional issues that may arise in the process of the transition from the armistice system to the peace system on the Korean Peninsula, and specifically, first, it is a review of how to view the declaration of an end to the war and the conclusion of a peace agreement in our constitutional system. The issue is whether it should be viewed as a constitutional treaty or it is whether it will be treated as a treaty between the four countries according to international norms, and will be regarded as a South‐North agreement that is valid only within South‐North Koreas according to the special relational theory between South‐North Koreas if four countries sign. Second, it is linked to the issue of the special relations between South‐North Koreas and the parties to the agreement, and the issue of North Korea's national approval, including territorial provisions and peaceful reunification provisions under the Korean Constitution, and to review this constitutively, new interpretations and approaches to so‐called reunification‐related norms such as Articles 3, 4, and 60 of the Constitution, the types of treaties ratified by the National Assembly, and factors for constitutional revision were reviewed. The establishment of a peace system does not stop only with the signing of converting the armistice agreement into a peace agreement, but needs to establish the elimination of the risk of war between South and North Korea, resolving mutual distrust and hostility, procedures, principles and norms to pursue common prosperity and coexistence, and it should include establishing a legally governing body and establishing a system of consultations between the parties that should be faithfully implemented by the parties. South‐North relations will not act as a stumbling block in establishing a peace system even if various issues on the Korean peninsula are solved according to the theory of temporary special relations. However, the legal status of the peace agreement is whether the peace agreement is regarded as a constitutional treaty or, the legal status of the agreement varies depending on whether or not it is regarded as an agreement document under the South‐North Relations Development Act. In addition, the issues with an approval of North Korea as a nation may arise during this process, and accordingly, all legal issues under the South‐North Relations Development Act, including the constitutional territorial provisions, were reviewed. The issue of opening and closing territorial provisions in Article 3 of the Constitution leads to a problem that requires a national consensus. To conclude a peace agreement and to grant the normative power and domestic legal effect of South‐North relations documents, based on Article 6 of the Constitution, the phrase “reunification treaty” or “special treaty between South‐North Koreas” needs to be inserted in the type of treaty of Article 60 of the Constitution, and amend the Constitution so that “reunification” or “special relationship”, not a treaty between the country and the country, can be stipulated in the Constitution, which can provide a constitutional basis for signing a treaty in the form of a treaty while granting the legal effect of South‐North Koreas without the approval as a nation. However, apart from the approval as a nation, it is still necessary to consider whether the preservation of Article 3 of the Constitution has the value to survive even