韩国修宪历史及其政治制度变迁研究

发布时间：2018-05-09 15:36

本文选题：韩国宪政 + 九次修宪　；参考：《延边大学》2009年博士论文

【摘要】：朝鲜半岛被美、苏分裂后,美国军政府在朝鲜半岛南部地区保留了日本殖民统治时期的法律和条例,并依靠右翼和亲美势力制定了韩国第一部宪法。这部宪法虽然在一定程度上坚持了民族主义精神,但在政治制度上却是模仿了欧美宪法,是一部“混血”式的宪法。六十余年间,九次修改宪法,使韩国终于踏上了民主化的轨道。韩国宪法修改频率之高,内容变化之多,对政局的影响之深,在世界宪政史上实属罕见。韩国的宪政大致经历了如下历程:“5·10”总选和建国宪法的制定:“6·25”战争与3年非常戒严;“拔萃宪法”的通过与两院制国会的开始;“3·15”违法选举与“4·19”民众抗争:执政党的分裂与张勉内阁政党政治的失败:“5·16”军事政变与《国家再建非常措施法》的实施;“10·17”非常措施的公布与维新宪法的确立;朴正熙被刺与全斗焕的军事政变;“6·10”民众抗争与朝野合议的修宪;政权和平交替与后续政府的改革。韩国宪政史经历了复杂曲折的发展过程。韩国九次修宪期间,国民在多次抗争中,取得了两次胜利;3次军事政变,3次中止原宪法:国会3次被强行解散;7次间选和10次直选选出10人为17届总统,其中1人亡命海外,1人被刺身亡,2人被判处无期徒刑,1人被弹劾;国会院制由一院制到两院制最终被确定为一院制;13次宣布戒严,时间长达1 825天:军事政变当局违宪过渡机构存续1 234天,处理2 121件议案,制定或修订了1 467部法律。在九次修宪中,有三次修宪使得韩国政体发生重大变化:第四次修宪改总统制为议院内阁制,第五次修宪将议院内阁制重新改为总统制,第九次修宪又将总统中心制改为权力分立、权力制衡的政体,为建立民主政治体制提供了法律保障;九次修宪中,前三次修宪案由国会通过,后六次修宪案则是由国民投票通过的:九次修宪中,有两次属正常修改,即第四次和第九次修宪。一次修宪程序不够完整,即第三次修宪违背修宪程序,实际上是执政的民主党一个政党的修宪。其余六次修宪的目的都不纯正,第一次、第二次、第六次、第七次修宪的目的是为了总统连任。第五次、第八次修宪的目的是军部势力为夺取最高权力;多次修宪案的起草过程、通过环境存在很多问题,第一次、第四次、第七次、第八次修宪案是在戒严状态中通过的,第一次、第二次、第六次修宪是在执政党或总统采取违宪手段的情况下才得以通过的,这类修宪严重阻碍了民主政治的发展,在韩国宪政史上留下了很不光彩的印迹。韩国宪政史呈现的特点是:修宪权几乎都被总统或者执政党掌控,修宪的焦点基本集中在总统连任和总统选举方式上,国民投票充当了总统连任和新政冶势力将夺取的政权加以正当化的工具。纵观韩国九次修宪和政治制度变迁的历程,可以得出如下结论:民主政治在九次修宪中艰难曲折地向前发展,民众的抗争促进了权威主义独裁统治的垮台与政治民主的转型。不正当的修宪案通过环境,由违宪过渡机构通过修宪案,都侵害了国家立法权,贻误了民主政治转型。行政与立法关系的错位、有名无实的宪法监督机构和司法审查的地位、权威主义独裁统治的横行,同样耽搁了民主的发展。韩国修宪和政治制度的变迁历程,不仅给韩国宪政史留下了宝贵的经验与教训,也为世界宪政发展史贡献了宝贵的实践经验与教训。总之,在世界民主化运动潮流的影响和国民抗争的推动下,随着经济社会的发展、开放的深入和文化的提升,韩国实现了从权威主义政治到民主政治的转型。在后期政府的政治改革中,民主化不断得到了巩固和发展,但仍然存在着总统与国会权力失衡、政党政治制度不够成熟等问题亟待解决。
[Abstract]:After the Korean Peninsula was divided by the United States and the Soviet Union, the American military government retained the laws and regulations of the period of Japanese colonial rule in the south of the Korean Peninsula, and made the first constitution of Korea by the right wing and the pro american forces. This constitution, to some extent, adhered to the spirit of nationalism, but in the political system it imitated the European and American Constitution. It is a "mixed blood" constitution. In more than 60 years, the constitution has been amended nine times. South Korea has finally embarked on the track of democratization. The high frequency of the revision of the Korean constitution, the change of the content and the deep influence of the political situation are rare in the history of the world constitutionalism.
South Korea's constitutionalism experienced the following course: "5. 10" general election and the constitution of the founding of the people's Republic of China: "6. 25" war and 3 years of strict martial law; the adoption of "the constitution" and the beginning of the bicameral Congress; the "3 15" illegal elections and the "4 19" people: the division of the ruling party and the failure of Zhang Mian's political party politics: "5 16" military. The implementation of the coup and the law of the national reconstruction; the promulgation of the "10 / 17" measures and the establishment of the constitutional reform; the military coup of Pu Zhengxi's assassination and full fighting; the "6 10" people's opposition to the constitutional amendment to the country; the alternation of political power and the reform of the subsequent government.
South Korea's constitutional history has experienced a complicated and complicated process of development. During the period of the Korean Constitutional Amendment, the nationals achieved two victories in several times of resistance; the 3 military coup and the 3 suspension of the original Constitution: the Congress was disbanded 3 times; the 7 election and the 10 direct election of 10 people were elected for 17 presidents, 1 of them were dead overseas, 1 was killed and 2 sentenced to the apostles. Punishment, 1 people were impeached; the congress system from one court system to the bicameral system was eventually identified as the one house system; the 13 was declared martial law for up to 1825 days: the military coup authorities continued for 1234 days of unconstitutional transitional institutions, handled 2121 bills, formulated or revised 1467 laws.
In the nine constitutional amendment, there were three constitutional amendments to the major changes in the Korean regime: the fourth constitutional amendment to the president system was the cabinet system of the house, the Fifth Amendment of the constitution changed the cabinet system of the house to the presidential system, the Ninth Amendment of the constitution changed the central system of the president to the separation of power, and the political system of balance of power provided the legal guarantee for the establishment of the democratic political system; In the nine constitutional amendment, the first three constitutional cases were passed by Congress and the latter six constitutional amendments were passed by the national vote: in the nine constitutional amendment, there were two normal revisions, namely, the fourth and ninth constitutional amendments. One constitutional amendment was not complete, that is, the third constitutional amendment violated the constitutional procedure. In fact, the remainder was the constitutional amendment of the ruling party of the Democratic Party. The purpose of the six constitutional amendment was not pure, the first, the second, the sixth and the seventh constitutional purposes were for the presidency. Fifth, the eighth constitutional purpose was the military force to seize the highest power; the drafting process of the amendment to the constitution had many questions through the environment, the first, fourth, seventh, and eighth constitutional cases were at the end of the constitution. In the state of martial law, the first, second and sixth constitutional amendments were passed in the case of unconstitutional means by the ruling party or the president. This kind of constitutional amendment seriously hindered the development of democracy and left a very dishonorable mark in the history of constitutional government in Korea.
The characteristics of the history of constitutional government in Korea are that the constitutional right is almost all controlled by the president or the ruling party. The focus of the constitutional amendment is mainly in the way of the presidency and the presidential election, and the national vote serves as a tool for the reappointment of the presidency and the political power that the new political power will seize.
In the course of the changes of the Korean constitution and the changes of the political system, we can draw the following conclusions: the democratic politics, in the nine constitutional amendment, developed hard and zigzag, and the resistance of the people promoted the collapse of authoritarian dictatorship and the transformation of political democracy. The legislative power of the state has been harmful to the democratic political transformation. The dislocation of the relationship between the administration and the legislature, the position of the infamous constitutional supervision and judicial review, the rule of authoritarian dictatorship, also delayed the development of democracy. The course of the change of the constitutional and political system in Korea has left valuable experience to the constitutional history of Korea. The lesson also contributed valuable experience and lessons for the history of constitutional development in the world.
In a word, under the influence of the trend of the world democratization movement and the national resistance, with the development of the economy, the opening and the promotion of culture, Korea has realized the transformation from the authoritarianism to the democratic politics. In the political reform of the late government, the democracy has been consolidated and developed, but the president and the president still exist. The imbalance of parliamentary power and the lack of political party system are urgent problems.

【学位授予单位】：延边大学
【学位级别】：博士
【学位授予年份】：2009
【分类号】：K312.6

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