우리 헌법사에서 ‘기본권’의 의미―그 이상과 현실의 교직

Abstract

The Bill of Rights in the Korean Constitution has been construed as being based on the idea of natural rights. Moreover, the social right clauses in the Constitution have been regarded as providing nothing but minimum standards. In the article, I trace the ur-constitutional documents in the late 19th century and examine the pre-constitutional documents in the first half of the 20th century, and draw some opposite conclusions. First, the equal protection clause has been overestimated as a dominant constitutional principle which has priority over any other fundamental rights in the Constitution. Second, the social rights have been regarded as substantial subjective rights of the citizen who wishes to realize the social and economic democracy of the new born republic. Third, the Bill of Rights has been textualized in the Constitution as positive rights which are based on strong statism and legalism. Since the 1948 Constitution, we Koreans have travelled the long and winding road toward the first-generation rights to civil and political freedom. And we are now standing at the starting point of the constitutional journey toward the second-generation rights to social and economic justice.