국가의 기본권개입의 한계와 정당성 심사

Abstract

This paper has investigated about the limits of intervention in basic right by the state, the criteria for judging the legitimacy and the problems in the process of applying these criteria. The Intervention in the basic right by the state can be divided according to the nature and content of basic rights, the type of provisions on basic right in the Constitution and the content which comes from state guarantee obligations for basic rights in Article 10 Section 2. The Limit of the intervention in the basic rights of the state is to be set differently according to the type of intervention and the criteria for judging the legitimacy should also be applied differently. Principles for ensuring the basic rights by the state is a limitation of fundamental rights as an exception. Accordingly Constitution stipulates in Article 37, paragraph 2, concerning limits on the restriction of basic rights. The principle of excess prohibition restrictions as the criteria for judging the legitimacy about restriction of the basic rights in accordance with the Constitution Article 37, paragraph 2 are being treated seriously. On the other hand, there are the principle of excess prohibition restrictions as well as the principle of due process and principle for the protecting trust profit as criteria for judging the legitimacy about restriction of the basic rights. Thus, competition may occur between these criteria. To applying all competing criteria at the same time in this case is concerned about get a contradiction with one another and also uneconomical. In this case, the problem on the application that will be preferentially applied to any criteria is caused. When the principle of due process and the excessive prohibition is competition, the Constitutional Court applied them in order. In contrast, in contrast, in this paper we describe it only makes sense to apply the due process principle. This opinion was based on the constitutional status of due process. When the principle of the excessive prohibition and principle of the protecting trust profit is competition in area of the basic right, it applies the principle of the excessive prohibition with respect to the contents of the restriction first and principle of the protecting trust profit in connection with the law the facts of the past, which includes the facts of the past.