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- 저자 : 손성평 (검색결과 1 건)
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基本權의 第3者的 效力에 관한 硏究 : 基本權保護義務 理論과 關聯하여
This Article aims to study the theories and judical precedents in Germany and United States of America concerning the problem of Drittwirkung. In Germany, the way of settlement of this problem developed through many theories. So to speak it has been treated as a problem of constitutional interpretation. So, it is the main argument whether constitutional Fundamental Rights has direct effect against private activities or not. However, in united States of America, it is settled that constitutional Fundamental Rights has no direct effect against Individual Rights . In order to protect constitutional Fundamental Rights against private invasion, several individual Rights are conceived as Governmental activities. The two situations in which constitutional standards are applied to private action are these. The cases in which government is supportively involved in private action by allocating aid, granting power, influencing private person to carry government objectives, enforcing Fundamental Rights by judical action or regulating Individual Rights are the first. And the cases in which private individuals have assumed government power or functions even without formal government involvement are the second. All the state organs are authorized to exercise their power, and it is also the duty to check the violations of other organs. They exercise their power and check each other. The Korea Constitutional Court usually checks the unconstitutionality of a law only when the law is clearly unconstitutional It can't pronounce a law unconstitutional when it has only some defects. It should respect the legislating power of the Congress, because it is composed of the representatives of the people. The fundamental rights can be guaranteed by the efforts of the state as well as the appropriate efforts of individuals. The state is an important protector of individuals rights. The Congress shall make law to concretize the fundamental right, and the other organs shall exercise their power to guarantee the individual rights. But the more we points the importance of the state in the guarantee of individual rights, individual rights become more dangerous because of the abuse its power. We should be aware of the danger of the abuse or misuse of the power of a state
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