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자료유형
학술저널
저자정보
저널정보
한국공법학회 공법연구 공법연구 제34집 제1호
발행연도
2005.11
수록면
19 - 48 (30page)

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초록· 키워드

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The Korean translation of due process of law is not accurate and its position in the Constitutional Law Code should be moved into other one. The art. 29 sec. 2 concerning State Compensation Claims should be abolished in accordance with the decision of the Supreme Court of 22 June 1971 which held it unconstitutional.The importance of right of life as a fundamental right has been confirmed through U. N. Convention on Civil and Political Rights, the U. S. Constitution, the German Basic Law and the Japanese Constitution etc. So far, we have thought that the right of life is acknowledged naturally through the interpretation of the Constitutional Law Code. But now we also must ascertain the state obligation, which protects the lives of the people, and the worth of right of life as a fundamental right by making explicit the right of life in the Constitutional Law Code.The freedom of thoughts is in a inseparable relation with the free and democratic basic order in an original sense. The basic obligation of the constitutional law and the state power could said to recognize the diversity of thoughts, to permit colliding thoughts to compete and discuss freely, and to give generousity to the thought of minority. The constitutional law professors must endeavour to keep the basic worths of the freedom of thoughts and to grasp its contents, too. To provide the freedom of thoughts in the Constitutional Code is the obligation which we don't have to defer anymore.We can think easily that the provision on the territory of the 1st Constitutional Law Code was considerably influenced by the divided situation of those days. But now we are moved from the times when the opinion for the peaceful unification was punished on violation of the National Security Act into those when it is the basic obligation of our country and the only way to the unification.Under the situation which the South and North Koreas enter the UN simultaneously and the Basic Agreement between the South and North Koreas comes into effect, the historical function of the provision on the territory, especially in the relation between two Koreas, is extinguishing. The erasing of the provision on the territory will diminish the tension between two Koreas, remove the constitutional basis of the National Security Act, and create the moment which guarantees effectively the freedoms of thoughts, conscience and expression.The provision on the dissolution of the unconstitutional political parties has made the “democratic basic order” of art. 8. sec. 4, namely the free and democratic basic order, work as anti-Communist ideology in the name of militant democracy. The system-safeguarding interpretation of the constitution by the Supreme Court, the Constitutional Court and the constitutional law professors apathy of it transmuted the free and democratic basic order, which should function as anti-Fascism, anti-Communist ideology. Such an interpretation of the constitution also caused the situation which blocked the peaceful unification.

목차

Ⅰ. 시작하며Ⅱ. 적법절차Ⅲ. 국가배상청구권(제29조 제2항)Ⅳ. 생명권Ⅴ. 사상의 자유Ⅵ. 영토 조항Ⅶ. 위헌정당해산 조항Ⅷ. 맺으며참고문헌

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