대한민국헌법상 국민에 대한 국가의 의무

Abstract

Rights have corresponding obligations. The state is also subject to obligations regarding basic rights guaranteed under the Constitution. These obligations do not necessarily need to be written in the Constitution. This is because rights logically presuppose the duties of the state. However, the Constitution of the Republic of Korea declares the state’s obligation to guarantee fundamental rights in Article 10, Sentence 2, which can be seen as reaffirming the logical result of the fact that fundamental rights should be guaranteed.
 On the contrary, obligations are not necessarily established on the premise of rights. The duty to the citizens granted to the state under the Constitution is not necessarily premised on basic rights. Aside from the state’s obligations related to guaranteeing basic rights, there are also many state obligation provisions in the Constitution of the Republic of Korea. Although these duties of the state are very important in the relationship with the people, there are many duties of the state that cannot be considered from the perspective of basic rights.
 This study pursues the goal of guaranteeing the basic rights of the people, but examines it from the perspective of duty rather than the perspective of rights. Meanwhile, the purpose is to reveal a comprehensive system that guarantees the status of the people, including the relationship between the state and the people, which cannot be seen from the perspective of rights. Specifically speaking, it is to find ways to guarantee the fulfillment of national obligations. In principle, non-performance of state duties can be evaluated as a violation of the Constitution, but the standard by which to judge its unconstitutionality is a very important issue in constitutional reviews.
 The basic rights system theory has been developed regarding the guarantee level of basic rights, according to which various methods of basic rights are classified. State obligations can be also classified according to the theory of state duty. First, the state’s duty can be divided into the duty to act and the duty to omit. Since the duty of omission is violated through active action, it is appropriate to conduct strict scrutiny especially when it is related to fundamental rights. In the case of obligation to act, omission and insufficient action are issues. In the former case, strict scrutiny is applied in the same sense as restriction, but in the latter case, various standards of review could be applied considering the legislative discretion and related concrete circumstances. But it may be applied the milder review, in principle, when the legislative discretion is permitted. This article specifically examines each individual obligation imposed on the state from this stand of view.