제도보장 이론의 공법적 의미와 문제점, 극복방향

Abstract

Our learned circles of public law have used “Einrichtungsgarantie” theory frequently. “Einrichtungsgarantie” theory, that C. Schmitt had advanced in earnest, has been estimateㅇ as a successful academic invention. Schmitt made “Einrichtungsgarantie” theory, by the way of explaining the Weimar Constitution. He regarded natural liberties as genuine fundamental rights. But Weimar Constitution chapter 2 provided a diversity of articles in addition to natural liberties. In order to explaining this condition, “Einrichtungsgarantie” theory was made. Since then, this theory has been advanced by a lot of scholars, and accepted by the constitutional court of the Federal Republic of Germany. Furthermore, this theory has a great influence on our academic and practical sphere of public law. But “Einrichtungsgarantie” theory has many problems. (1) This theory premise C. Schmitt's constitutional understanding. But we can hardly accept it, so “Einrichtungsgarantie” theory becomeㄴ groundless. (2) The concepts of institution and institution's core are ambiguous, so normative utility of this theory is insufficient. (3) The purpose of this theory, to check the infringement of legislature, was missed. The guarantee of institution has turned into the restriction of institution. For these reasons, “Einrichtungsgarantie” theory should fall into disuse. But “Einrichtungsgarantie” theory nevertheless contributed to an idea of objective validity in the fundamental rights. In addition, disuse of “Einrichtungsgarantie” theory never means extinction of institutions. On that account, we should consider new institutions theory. This new theory has to be a logical argument, and match with our constitutional realities. Willfulness of theoretician must be exclude. Above all, the starting point of this theory must be institution`s significance itself.