Research Report
Study on Aligning legislations during the transitional period after its unification in Germany and its implications to Korea
I. Background and Purpose of Research
▶ Background of the study
○ Similarities between Germany's division and ours
- After World War II, defeated Germany was occupied by the forces of the victorious powers. The victorious powers were the United States, Britain, France, and the Soviet Union. Germany was divided into two parts, with the Soviet Union occupying East Germany and the other powers occupying West Germany.
- In our case, it was Japan that was defeated, but it was a vassal state of Japan, so the U.S. and the Soviet Union occupied the Korean Peninsula, dividing it into two parts, the Soviet Union in the north and the U.S. in the south.
○ Legal integration in Germany's reunification process
- West Germany created the Basic Law and East Germany created the Constitution and governed separately, but when East Germany was absorbed into West Germany, the process of integrating the legal systems, especially the Constitution, played an important role in reunification.
- The last step in Germany's unification process was the unification of the legal system. Since the unification of the constitution virtually completed the reunification, we would like to look at the process of constitutional unification and draw implications as we prepare for reunification.
▶ Purpose of the study
○ Review of Germany's Constitutional Integration Process
- While there are many studies on the German unification process, there are not many studies that focus on the unification of the constitution. However, given that the unification of the constitution was the final stage of unification, it makes sense to look at the integration of the East and West German constitutions in Germany in chronological order.
- In particular, it aims to examine the process of change within the GDR as it was reunified through incorporation into West Germany and the role and contribution of the Basic Law and the Federal Constitutional Court.
Ⅱ. Major Content
▶ Germany's division and the Cold War
○ Prolonged division of Germany
- The division of Germany began, with West Germany controlled by the Allied Powers and East Germany by the Soviet Union.
- The division of Germany marks the beginning of the Cold War, and relations between East and West Germany drift apart as West Germany claims sole representation (Alleinvertretungsanspurch).
○ The easing of tensions between East and West Germany as Chancellor Brandt pursues an eastern policy.
▶ Signing of the East-West German Basic Treaty
○ As a result of the Eastern Policy, East and West Germany signed the Basic Treaty (Vertrag über die Grundlagen der Beziehungen zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik).
○ Expressions such as reciprocal equality and respect for the independence and sovereignty of both countries were used, but there was no recognition of the statehood of the GDR.
▶ Articles on the unification of the constitutions of East and West Germany
○ The West German Basic Law was a constitution that sought unification, while the East German Basic Law did not use the concept of unification.
○ Article 146 of the West German Basic Law stipulated that unification was to be achieved through national self-determination by establishing a new constitution, and Article 23 stipulated the method through accession(Beitritt).
▶ Signing a unification treaty
○ The collapse of Eastern Europe and the end of the Cold War led to a peaceful revolution in East Germany.
○ The people of East Germany demanded reunification, so a treaty was signed to unify East and West Germany (Treaty of Unification, Vertrag zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik über die Herstellung der Einheit Deutschlands: Einigungsvertrag).
○ Unification was achieved by dividing East Germany into five states and incorporating them into the Federal Republic of West Germany, the faster of the two methods.
○ Decided to continue to use the Basic Law as a constitution by extending the effect of the existing Basic Law to the GDR without enacting a new constitution.
○ The Basic Law was amended into the Unified Constitution through the Unification Treaty.
▶ Decisions of the Federal Constitutional Court in the unification process
○ The constitutional controversy over reunification was finally resolved by the Federal Constitutional Court, as reunification was achieved while the basic law of West Germany remained in effect.
○ Contributed to unification by giving legitimacy to measures for unification in the debate without going beyond the limits of the basic law, for example, by recognizing the dual nature (doppelcharakter) of the treaty in the constitutionality debate, or by stating in the unification treaty that the concrete realization of unification is left to the free formation of the political and administrative spheres and therefore the provisions of the basic law should be interpreted with an open mind.
Ⅲ. Expectations
▶ Preparing for unification in our constitution
○ Although our constitution aims for unity, there is no provision for unity or any regulations related to unity.
○ Even under the current Constitution, there is room for a unification-oriented interpretation of provisions related to unification.
▶ Implications for the German Constitutional Integration Process
○ Although German reunification is said to have occurred abruptly with the collapse of the GDR, there have been many exchanges in the private sector since the signing of the Framework Treaty.
○ Germany's absorption into the European Union demonstrates that creating a new constitution through consensus takes time and effort.
○ Need to start preparing for unification early to unify laws and constitutions for unification