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초록

영어

National referendum is a system of direct democracy that modifies the principle of representative system. This essay is based on the Constitutional Court’s ruling of 2004hunma554ㆍ566 declared on Oct. 21, 2004 which manifestly explained held “Power of enacting Constitution participates in enacting all sort of legal source”. The writer does not deny the possibility of enacting of Constitution and law through national referendum and granting nation’s direct vote for important policies linked to patently or impliedly confidence vote. This essay also treats the following topics and the writer’s assertions are considerably different from that of other scholars on constitution law. Firstly, The writer does not agree with the scholars’ general assertion that ‘important policies’ are of the ‘whole’ national nature and it’s effects are ‘direct’ to the Korea’s destiny, especially with the latter part of assertion. The notion of Anㆍyui안위(安危) of §72 of Constitution should be understood as ‘safety and/or welfare’ instead of ‘destiny’ according to Korean lexical definition. Secondly, President’s power to submit to nation’s direct vote is not discretionary one. Under some circumstances, his omission of not submitting to nation’s direct vote the important policies may bring about the motion of Congress’ impeachment, and in this sense, President’s power can fall on obligatory one. Thirdly, the writer does not agree with several scholars assertion which requires one half of eligible to vote in elections for members of the National Assembly in order to make the policies take effect. As Constitution does not prescribed the minimal quorum to vote, such requirement only impede President’s submission. Fourthly, President loses his position as soon as the result of the nation’s direct vote lined patently or impliedly linked to confidence vote is negative instead of requiring further procedure of resigning. Fifthly, the time of entering into force of the nation’s direct vote is not that of President’s promulgation but that of publishing result by the National Election Management Commission.

목차

Ⅰ. 머리말
 Ⅱ. 國民投票附議제도의 沿革과 比較憲法的 意義
 Ⅲ. 國民投票의 附議對象
 Ⅳ. 國民投票附議의 裁量性
 Ⅴ. 國民投票에 의해 발생하는 效力
 Ⅵ. 맺음말
 참고문헌
 Abstract

키워드

국민투표 대통령의 국민투표부의권 국민투표를 통한 법률의 제정과 개정 국민투표를 통한 헌법개정 신임국민투표 신임국투표를 결부한 국민투표가 부결됨으로 인한 대통령의 지위 국민투표결과의 구속력 국민투표결과의 효력발생시기 nation’s direct vote President’s power to submit nation’s direct vote amendment of Constitution or law through nation’s direct vote nation’s confidence vote President’s position after defeat of the nation’s direct vote linked to confidence vote binding effect of the result of nation’s direct vote time of entering into force of the nation’s direct vote

저자

• 박찬주 [ Park, Chanju | 조선대학교 법과대학ㆍ변호사 ]

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