미국헌법상 근본적 권리와 한국헌법상 열거되지 아니한 자유와 권리의 도출근거

Abstract

Korean Constitution (hereafter as “the Constitution”) Art. 37(1) (hereafter as “the Provision”) prescribes : “Freedoms and rights of citizens shall not be neglected on the grounds that they are not enumerated in the Constitution. Korean Constitutional Court (hereafter as “the Court”) has used the Provision as the ground provision from which it derives freedoms and rights that are not enumerated in the Constitution as the basic rights that are guaranteed under the Constitution. But a question rises whether such standpoint is right or not. Concerning the role of the U.S. Constitution Amendment Art. 9 (hereafter as "the U.S. Provision) that is the model of the Provision, there are many theories one of which is that the U.S. Provision is the ground provision of affirming the fundamental rights that are not enumerated in the U.S. Constitution. But the U.S. Supreme Court does not have accepted such opinion. It means that the U.S. Supreme Court receives the theory that the Founding Fathers stipulated the U.S. Provision as a warning to the legislatures. Since the Provision was set up under the influence of the U.S. Provision, the Provision should firstly apply to the Korean legislature. Therefore, the Court which decides whether the legislature has successfully accomplished the orders that the Korean Founding Fathers set up through the Provision, should not carelessly tell the Provision as the ground provision of the freedoms and rights that are not enumerated in the Constitution. The Court should firstly consider other existing Constitutional provisions when it confirms the freedoms and rights that are not enumerated in the Constitution as the basic rights.