기본권의 개념에 관한 연구
Concept of Constitutional Rights

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서울대학교 법학연구소
법학, Vol.44 No.2, pp. 1-80
자유, 평등, 권리기본적 인권기본권과 인권
This article aims at defining what is constitutional right. In the area of

constitutional law, it has not been clear what the constitutional right means,

whereas there are many topics of the constitutional rights.

In defining the concept of constitutional right, it is necessary to discriminate

natural right and human right from the constitutional right. There are many

constitutional rights which are not natural as the right of voting and access to a

court. The term ‘human right’ is used in many cases with conceptual ambiguity.

The concept of human right is ambiguous, so it should be emphasized that

constitutional right should be understood clearly separate from human right.

I analysed the concept of constitutional right. The constitutional right has its

elements in three dimension: individual right, positive right and constitutionguaranteed

right. The constitutional right has individuality, claim, liberty, power

and immunity as a individual right. The claim is an essential element of right,

so having a right means having a claim. The people who have a constitutional

right, can have a claim to something and against someone. The government has

a duty to realize the constitutional right. The people who have a right, can

assign or renounce the right, but the constitutional right can not be assigned or

renounced with the exception of extraordinary cases. This right also has a

immunity, so nobody can enforce an individual who has such a right to do

something against the right in the area where the right is effective.

The constitutional right is a positive right that is guaranteed by the positive

constitution. This positivity makes the constitutional right to be distinguished

from natural right and human right. The constitutional rights get the character of...
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 44, Number 1/4 (2003)
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