과학기술의 발달과 기본권 해석의 재조명 - 사법부의 역할과 기능을 중심으로

• 영문명: Theory of interpretation in constitutional law and the human rights in the 21st century - on the focus of the judicial role and function -
• 발행기관: 한국헌법학회
• 저자명: 朴宣映(PARK Sun-Young)
• 간행물 정보: 『헌법학연구』憲法學硏究 第13卷 第4號, 1~46쪽, 전체 46쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.12.30

영문 초록

  Constitutional law is understood as the fundamental norms of liberal, democratic and social constitutional countries. Because the constitutional law formulated in language has many possibilities of diverse interpretation, the topic of constitutional law interpretation, especially in the part of fhuman right"s interpretation than in governmental construction, has long been a major branch of legal theory and philosophy. Recent rapid scientific technology developments have raised important judicial issues from bad to worse in relation to the interpretation of the human rights. The cases that have been coming before the court in recent years pose serious interpretive challenges.
  In this paper, I suggest the method of fundamental rights interpretation based on the human dignity principle with a concise overview of human rights norms and the institutional context within which they evolve. It is interesting to note that there are so many different systems for presumably one basic set of human rights and principles, though again this makes sense because each fundamental right has its own principles and interpretations of what is a "right". So I sketch the structure and procedures of the human rights interpretation method, the character of rights, the function and limit of the judicature, the general style and structure of decisions in which judges write in cases of modem scientific rights. This paper analyzes the idea that creative interpretation and choice in interpretation amounts, by default, to illegitimate discretion and is used to wave the flag of judicial self-restraint. In conclusion, I try to newly establish the concept, function and protection of basic constitutional value, human dignity under the korean constitutional law through the interpretations on fundamental rights.
  There would be a tendency towards broadening judge"s competence over fundamental rights interpretation in the 21st century. So every courts can-not help substantially functioning as a law-making authority through the interpretation course as a the final constructionist. There is nothing for it but to recognize this circumstance in spite of the principle of separation of powers. Thus, judges have to have more open-minded, or at least open to debate and interpretation, and make more difficult to review the justification of decision, the rationality or reasonableness of interpretation to widen and enlarge the human dignity in the 21st century. "Human dignity norms" might not be interpreted as existing in name only.

목차

Ⅰ. 기본권 해석의 창조적 기능
Ⅱ. 기본권 갈등의 심화원인과 기본권 해석의 변화 필요성
Ⅲ. 과학기술의 발달과 기본권 해석의 문제
Ⅳ. 결론 : 기본권보장 책무로서의 헌법해석
참고문헌
〈Abstract〉

키워드

기본권해석 기본권갈등 해석자의 先理解 인간의 존엄 과학기술의 발전 theory of interpretation in constitutional law conflicting types of fundamental rights Vorverst？nding human dignity scientific technique in the 21st century