제4기 헌법재판소의 인격권과 행복추구권에 관한 판결성향 분석

Abstract

This article examines how the 4th Constitutional Court showed in the constitutional courts related to the basic rights of the Constitution, the personality rights and the right to pursue happiness. The 4th Constitutional Court sees the legal nature and effect of the right to pursue happiness as a comprehensive right in the sense that the people can freely pursue activities for happiness without interference from the state power, and as a supplementary basic right to other basic rights. Therefore, it is taking the position that it is not necessary to independently judge whether the right to pursue happiness is infringed if there is a basic right to be applied directly. However, the 4th Constitutional Court recognized the right to pursue happiness and the personality rights in about 23% of all constitutional court cases in which the right to pursue happiness and the right to personal personality was infringed, and thus, the right to pursue happiness and the right to personality were not decorative basic rights. Like other basic rights, it was recognized as the main means for realizing the dignity and values of man under Article 10 of the Constitution. Moreover, the 4th Constitutional Court showed a gradual expansion of the protection of basic rights in general against the infringement of general freedom of action, which is a problem in the basic and everyday life of the people. However, when it comes to sensitive political issues, it denies the basic right of peaceful survival, and shows that the public interests are prioritized over private interests without a rational comparative sentence, albeit dissent. I think the contradicting propensity of judgment of the 4th Constitutional Court is because the characteristic of the Constitutional Court, that is, the fourth state functioning, has not been properly expressed, and the understanding of this characteristic is different among justices. And it can be said that this is not unrelated to the fact that most of the justices of the 4th Constitutional Court are from high-ranking judges or prosecutors. Therefore, in order to solve this point, it can be said that, above all, it is necessary to devise a plan that guarantees free contention of various values and a reasonable comparative sentence in the process of constitutional trial through diversification of the personal composition of constitutional court justices.