생명권의 보장과 본질적 내용의 침해 금지

Abstract

This Study reviewed the constitutional issues on the right to life, especially whether the right to life may be restricted under Article 37 Section 2 of the Constitution and the restriction on the right to life infringes the essential aspect of that right. According to my study, human life is the most important value and human right in law because it is not irreplaceable with any other things. While the right to life is not expressly enumerated in the Constitution of Korea, we can admit that the right is the most fundamental right and precondition to all the rights set forth in the Constitution. Thus the government has a duty to make proactive efforts to protect the human right to life. Even if a person's life in an ideal sense is regarded to have an absolute value, legal assessment on a person's life can be permissible as an exception. Because there can be exceptional circumstances where a person's life must be inevitably taken away in order to protect or save another’s life. As a result the right to life may be subject to the statutory reservation under Article 37 Section 2 of the Constitution and the government may take measures to restrict on a particular person's right to life in such exceptional circumstances. Since the right to life consists only of essential aspect of the right, any restriction on the right to life always results its total deprivation. However the right to life is a fundamental right that may be justifiably restricted in exceptional cases. If the restriction on the right to life may be justified under the principle of proportionality. it shall not be deemed as an infringement of the essential aspect of the right to life.