신체의 자유에 대한 기본권 체계와 신체를 훼손당하지 않을 권리

Abstract

The sanctity of human life and the inviolability of the human body are inherent elements. In contemporary constitutional states, these two aspects are placed at the forefront of fundamental rights, serving as the foundation for various other rights. Consequently, the constitution not only addresses the right to life and bodily integrity in the context of personal autonomy as paramount but also dedicates considerable attention to safeguarding these values throughout the course of human history. Our constitution follows suit in this regard.
 However, the current constitution lacks explicit provisions regarding the right to life and the right to bodily integrity, leading to divergent opinions on their derivation and interpretation. While some perceive the implicit inclusion of these rights in the existing constitution, differing perspectives exist on the legal basis for such inclusion. Key references include Articles 10, 12, and 37(1) of the constitution, within the systematic understanding of these provisions lies the right not to be harmed in life and body.
 While the right to life has undergone a clear evolution in terms of its protected scope throughout historical development, the right not to be harmed in the body has not garnered significant attention within the structure of the current constitution. Even the Constitutional Court, when discussing the freedom of the body, has limited its arguments to general explanations without delving into profound discourse. Consequently, the right to bodily integrity has seen modest recognition in terms of its protective value and scope, often remaining latent and inadequately scrutinized in pertinent cases. This article aims to distinguish the protection domain of the right not to be harmed in the body from the freedom of bodily activity, emphasizing its distinct sphere and highlighting its utility as a criterion for judicial review.