현행 헌법상 기본권 체계 및 범위에 관한 일고찰

• 영문명: A Study on the System of the Fundamental Human Rights
• 발행기관: 한국헌법학회
• 저자명: 한상운(Han Sang-Woon)
• 간행물 정보: 『헌법학연구』憲法學硏究 第13卷 第3號(第2冊), 501~537쪽, 전체 37쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.09.30

영문 초록

  Respecting the fundamental human right is the core notion of the constitution. Contractions and methodologies of respecting the human rights vary by each county. It is not deniable that constitutional laws, which clearly provide fundamental human rights, are more effectively protecting fundamental human rights than the one that is not provided. Although examples of the British and the USA constitutional laws can challenge this line of claim, it is widely accepted by Korean academia of constitutional law"s theories and precedents that defined fundamental human rights in the constitutional law would have more clear debates such as contents and limitation of fundamental human rights.
  The fact that the limitation of the fundamental human rights, which could be or must be guaranteed by constitutional law, cannot be extended infinitely and it is not necessary. (This can be supported by the openness and incompleteness of the constitution). Therefore, it can be satisfied by indicating provisions of fundamental human rights in the constitutional law considering fundamental values that the current constitutional law pursuits. In other words, various unwritten rights can be derived by the interpretations based on openness and abstractness of the core of the fundamental human rights.
  An issue arises under the current constitutional law that whether the pro-visions of the fundamental human rights meet the system of fundamental human rights. For it, first, prior understanding of the relationship between the systems of the fundamental human rights and ‘Grundrechtstheorie’ is necessary. The definition of Grundrechtstheorie is that it is a systemic view points or theory regarding the general characteristics, regulatory goals and its courses, and contents limitation. Grundrechtssystem, the system of fundamental human rights means the internal system or order that could provide guidance in interpreting general fundamental human rights. Allowing the system of fundamental human rights as a means of understanding the theory of fundamental human rights which is used as a means of understanding fundamental human rights are to prevent national authorities from arbitrative interpretation of human rights, thus to enhance security of the fundamental human rights ultimately. Therefore, the theory and the system of fundamental human rights have been fully supported except the necessary explanation of each of unique values in interpreting individual human rights are remained unproved.
  Regarding the system of fundamental human rights under the current constitutional law, the system of the human rights that based on natural rights should be eliminated. It is an appropriate argument that the interpretation of the human rights should be based on constitutional law rather than natural law regarding methodological limitation of the law. Under the current constitution, fundamental human rights could be understood that the constitutional law has characteristic of natural law and the duplicity of the fundamental human rights in interpreting should be fully considered. Current constitutional law constitutes of dignity of human, pursuit of values and happiness, recognition of duplicity of fundamental human rights, respect of liberty and equality, respect of the right to participate in politics and the right of judicial redemption, right of compensation of human welfare, and effect of the human right toward the nation as well as other people. As a result, debates on understanding of each aspects of constitution could be validated by the fact that the openness, uniformity, and limitation in interpretation of the constitution could be secured via reviewing internal relevance among constituent of systems of the human rights. Regarding effect of fundamental human rights, the provisions of the social rights that the internal relevance is difficult to be admitted under the current law should be improve

목차

Ⅰ. 서론
Ⅱ. 기본권이론(Grundrechtstheorie)
Ⅲ. 기본권체계(Grundrechtssystem)에 관한 논의
Ⅳ. 현행 헌법상 기본권체계
Ⅴ. 기본권 보호범위
Ⅵ. 결론
참고문헌
〈Abstract〉

키워드

기본권 기본권 개념 기본권 성격 기본권이론 기본권체계 fundamental human rights nature of fundamental human rights notion of fundamental human rights theory of fundamental human rights system of fundamental human rights