S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) 법학 법학 Volume 44, Number 1/4 (2003)
기본권의 개념에 관한 연구
Concept of Constitutional Rights
- Issue Date
- 서울대학교 법학연구소
- 법학, Vol.44 No.2, pp. 1-80
- 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...