주식회사와 정치적 표현의 자유- 기본권 주체성 여부를 중심으로 -

Abstract

There has been a long debate on whether to be able to recognize the subjectivity of basic rights to corporations as beings different from natural people. Is there a prestigious provision related to the Constitution, can it be interpreted as an interpretation, and if so, is the scope and kind of limitation recognized, etc. Even under our constitutional structure, which does not stipulate the basic powers of corporations before the Constitution, the Korean Constitutional Court must naturally apply to the corporations the basic rights that corporations can enjoy due to the interpretation of the constitution. It has been judged that it does not cover for-profit corporations or non-profit corporations. And even though corporations were given freedom of political expression, the Constitutional Court did not show judicial arguments for its conclusions. In particular, judicial review was needed on the question of how to recognize the subjectivity of these basic political rights due to the purpose and the fundamental structure of the corporation. To this end, we reviewed not only the Constitution, but also related legal discussions. We needed to examine whether the essence of the corporation's profitability could be harmonized with the guarantee of political rights for the realization of democratic values. In relation to this, they considered the independence from the shareholders and the current laws and regulations regarding the company's own political decision-making process and decision-making process on the premise of such independence. In addition, constitutional discussions and judicial discussions on whether to limit the rights and capabilities of corporations, including corporate fundamentals, were considered in this review with a structure and content.