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자료유형
학술저널
저자정보
저널정보
한국공법학회 공법연구 공법연구 제33집 제3호
발행연도
2005.5
수록면
71 - 114 (44page)

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In its recent decision, the Constitutional Court held that the statute for the construction of a new administrative city away from Seoul is unconstitutional. In reaching this conclusion, the Constitutional Court relied on what it perceived as the customary constitutional rule requiring the capital of Korea to be located in Seoul and nowhere else. This decision has been the subject of some controversy as it raised the issue of customary constitutional rules in a country which adopted a written Constitution.This paper aims to examine an article which appears to provide a theoretical basis for the decision. The said article put forward a view that customary constitutional rules must be recognised in a wide range of areas even in a country which has adopted a written Constitution. The article further suggested that since customary constitutional rules must be understood to have the same force and effect as any of the written constitutional provisions, a Statute which is in violation of a customary constitutional rule must be set aside. It is claimed that this conclusion is supported by arguments put forward by some of the writers in France.This paper attempts to show that those French authors' arguments about the force and effect of constitutional custom (coutume constitutionnel) had a very different aim. Their claim was that written constitutional provisions may sometimes have to be regarded as abrogated by constitutional practice or legislative measures which are incompatible with those provisions. It was quite different from the position taken by the Constitutional Court in its recent decision which ruled that since customary constitutional rules have the same force and effect as any of the written constitutional provisions, they cannot be abrogated by a statute. In particular, while the said article appears to rely heavily on René Capitant's argument about popular sovereignty and customary constitutional rule, Capitant's view was that constitutional practice which might be incompatible with written constitutional provisions does not necessarily become unconstitutional as it may be regarded as embodying a customary constitutional rule, which has - according to Capitant - the power to abrogate a written provision in desuetude.The said article was focused on 'whether or not' the customary constitutional practice can have the force of constitutional law. It largely neglected why those authors tending to recognise the legal force of customary constitutional practice chose to do so. As a result, the said article came to a conclusion which is radically different from the view of the authors it purports to rely on. This paper analyses how such a conclusion was uncritically reflected in the recent decision of the Constitutional Court.

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Ⅰ. 용어사용에 대하여Ⅱ. 우리 헌법체계와 ‘관습헌법’Ⅲ. 맺는말참고문헌

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UCI(KEPA) : I410-ECN-0101-2020-350-000705385