한국과 중국 헌법상 기본권보장을 위한 국가의무에 관한 연구

Abstract

Under the Constitution, the relationship of basic rights means the relationship of rights and obligations between individuals and the state. Therefore, the fulfillment of the constitutional state obligations ist important to realize the basic rights of individuals. State obligations are generally divided into the obligation to prohibit infringement of basic rights, the obligation to realize basic rights, and the obligation to protect basic rights. In order to realize the basic rights of the people, it is important to analyze the state obligations from a holistic perspective. Therefore, this study aims to analyze the constitutional state obligation in a broad sense. In particular, it tried to provide implications for the Constitutions of both countries by comparing state obligations under the Constitutions of Korea and China. Like Korea, the constitutional state obligations of China are classified into the obligation to prohibit infringement of basic rights, the obligation to realize basic rights, and the obligation to protect against infringement of basic rights by third parties. In March 2004, through the amendment of the Constitution, China stipulated the state obligation to respect and guarantee human rights in Article 33 paragraph 3. This provision corresponds to the second sentence of Article 10 of Korean Constitution and constitutes an important part of the constitutional state obligations. This study also analyzed the provisions using terms such as protection, guarantee, and prohibition of infringement, noting the literary expression of the Chinese Constitution. The Chinese Constitution provides sufficient normative grounds for the guarantee and protection of basic rights. But there are deficiencies in the legislative, administrative and judicial phases that embody constitutional ideas. It is expected that these problems can be improved in a better direction by referring to Korean institutions related to constitutional state obligations.