기본권의 분류와 통합: 통합적 기본권론 시론(試論)

Abstract

Theories on constitutional rights aim to ensure and implement constitutional rights more effectively. To reach the goal, it seems more appropriate to inquire into individual contents and effects of each rights than to mechanically corresponding them to the result of classification that decides in what category the right in question belongs to. This article is an attempt to convert the tripartite typology in international human rights law into a national theory on constitutional rights. Integrated theory of constitutional rights, advocated in this article, recognizes multiplicity and comprehensiveness of state obligations in ensuring constitutional rights, be it civil-political rights or social-economic rights. This theory recognizes state obligations to respect, protect and fulfil constitutional rights no less than the tripartite typology in international human rights law does. This theory could be a useful tool that would conduce to fuller implementation of constitutional rights, because it either fills the gaps between the categories or crosses the borders of classifications. Integrated theory would be helpful to consolidate the enforcement of social and economic rights. It also has strength at expounding the positive elements in civil and political rights. Nowadays, procedural guarantee of constitutional rights have as much importance as that of material guarantee. Integrated theory enables to review if the procedure required has been provided in terms of (state’s) obligation to fulfil or to protect the rights. Integrated theory requires integrated approach in the issue of standard of constitutional review. ‘Necessary Test’ stipulated in Art.36 paragraph 2 provides unitary and comprehensive framework of review that can be applied to all categories of constitutional rights issue. It also allows flexible application of the test according to the varied issues of individual rights. Types of state obligation can be a relevant factor in deciding the standard of review, but the standard can move across the types of obligation as the concrete issue of the rights in question varies.