재산권 보장의 상대화와 입법자의 역할 - 헌법 제23조 제1항의 해석에 관한 시론 -

Abstract

As economic activity plays a critical role in modern society, the meaning and impact of fundamental economic rights, including property rights, are significant in modern Constitutional Law as well. However, the consistent changes of features, contents, and realization of property rights within the fast moving modern society are appeared as even more important. In the mean time, the active international interchange in this era of globalization and the by-products of rapidly developing technology not only transform the economic order but also exert an influence on the understanding of features and contents of property rights, which lays the foundation of the economic order. Mostly, these changes only require countermeasures at the Act dimension, not at the Constitutional dimension. As new types of property rights are constantly generated, Constitutional approach of Article 23(1) interpretation is taken into consideration. Existing interpretations of Article 23 are mainly discussed by Article 23(2) and Article 23(3); yet, the demand for an in-depth examination of the relationship between the first sentence and the second sentence of Article 23(1) increases within this modern society. The first sentence of Article 23(1) has a same syntactic structure as the other Articles, clarifying fundamental rights to freedom. However, even though the distinctive second sentence of Article 23(1), “the contents and limitations thereof shall be determined by Act”, which hardly stipulated in other fundamental rights to freedom, is more similar to civil rights statutes, the rights to property is definitely affiliated to the rights to freedom. Therefore, examining this distinctive regulation and clarifying its meaning become the starting point of this treatise. Existing theories and judicial precedents have mainly been interpreting the Article 23(1) and Article 23(2) within a same context due to German’s Constitutional theories and practical influences; however, it is more likely to overlook the distinctive significance of Article 23(1) which defines legal reservation of fundamental rights formation than the other rights to freedom. Moreover, the ranges of legislation are varied depending on legal reservation of fundamental rights formation which guarantees range of fundamental rights and legal reservation of fundamental rights restriction which restricts the range of fundamental rights; hence, it is improper to combine the guarantee and restriction of property rights together. This treatise focuses on the necessity of examining the relationship between the first sentence and the second sentence of Article 23(1) from a different perspective. Similarity in two property rights that clarified in the first sentence and the second sentence of Article 23(1) is examined from a different viewpoint. Consequently, interpreting Article 23(1) should be subdivided according to the types of property rights – on one hand the traditional property rights including a real right and a claim on a chattel or a real property and the other hand emerging property rights such as intellecual property - as the range of legislator’s rights to enact a law depends on the types of property rights. However, it is hasty to conclude that the proposed theses can be applied to all types of property due to the consistent changes in the features and the contents of property rights; other types of subdivision may be required by further examination. Therefore, the treatise is a starting point for the new interpretation of Constitution Article 23(1).