私法上의 團體와 憲法

• 영문명: The Private Association and the Constitution
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 尹眞秀(Jinsu Yune)
• 간행물 정보: 『비교사법』比較私法 제15권 제4호, 1~69쪽, 전체 69쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2008.12.30

영문 초록

This article deals with some significant constitutional issue with respect to a private association. The Korean Constitution guarantees the freedom of association as one of fundamental human rights. It includes both the positive right to associate and the negative right not to associate. Regarding the former, the current Korean system on granting permission for the establishment of a non-profit association seems problematic. According to the Korean Civil Code, the permission of a competent governmental authority is a prerequisite for establishing a non-profit organization. It is not possible, however, to litigate against the denial of the permission. From the perspective of the freedom of association, the remedy against such a denial should be allowed. Regarding the latter, the Korean Supreme Court has been ruling repeatedly that all the grown-up male descendents of a common ancestor automatically become members of an Jongjung(agnatic descent group) regardless of their intentions. On the other hand, the Korean Constitutional Court regarded a law that required all patent attorneys to be members of a patent attorney association as constitutional. It also opined that the union shop system of the labor organization is compatible with the Constitution. In light of the freedom not to associate, it is doubtful whether or not these precedents are appropriate. It is generally recognized that the private association is the subject of human rights. Therefore, the act of a private association can be protected by the Constitution. The inner sphere of a private association is not directly governed by the Constitution. The horizontal effect of human right, however, should be taken into account in adjudicating the dispute between a private association and its members. Finally, Korean courts are generally abstinent in the ecclesiastical matters. However, judges need to broaden the scope of the judicial review on disciplinary measures taken by religious associations against their members. This will better serve their rights of access to justice.

목차

Ⅰ. 序論

Ⅱ. 私法上 團體의 槪念

Ⅲ. 私法上 團體 構成員의 基本權

Ⅳ. 私法上 團體의 基本權

Ⅴ. 私法上 團體 內部의 問題

Ⅵ. 結論

【參考文獻】

[Abstract]

키워드

結社의 自由 私法上 團體의 基本權. 基本權의 間接的 效力 私法上 團體의 內部紛爭 Freedom of Association The Human Right of the Private Association Horizontal Effect of the Human Right Dispute within the Private Association