안전권에 대한 헌법적 고찰

Abstract

‘Freedom’ can be defined as the absence of physical and psychological coercion, and ‘safety’ can be defined as the absence of danger and risk. Danger and risk can lead to undesirable and forcible restrictions on personal freedom. In this respect, security can be said to be a prerequisite for individual freedom. The fundamental right to safety can be said to be an unwritten fundamental right that is recognized even if it is not explicitly stipulated in the Constitution. However, if it is not stipulated in the Constitution, it may be difficult for the Constitutional Court to make a decision on the right to security as a fundamental right. Public safety is an important legal interest and national task that the state must protect. Regarding the legal nature of safety, there are views that view it as a ‘public interest’ and views that view it as a ‘national task.’ Even if the legal nature of safety is viewed as a public interest or national task, it is not a reason to deny the fundamental right to safety. In a situation where security is threatened, the fundamental right as an effective right specified in the Constitution can no longer be understood as an effective right, and may be subordinated to the ‘fundamental right to security’, which is abstract and has the upper hand in balancing test.
 Freedom and security are compatible only when the legislator regulates the content of the law as clearly as possible and ensures legal stability in accordance with the pro- visions of each pre-structured national legal order. From this perspective, the principle of clarity in the rule of law can guarantee legal stability and properly perform the function of guaranteeing freedom when the offender has predictability and substantive and content clarity. In this case, a constitutional balance between freedom and safety can be achieved.
 However, in areas where uncertainty reigns, such as science and technology law and communications law, pre-structured substantive and content laws seek to protect the current legal status by preventing danger and risks. As open legal norms such as the Science and Technology Act and the Communications Act continue to develop, they lose control of legal norms because they use legal concepts and legal terms that are not defined in existing laws. Unclearness of the law in terms of substance and content causes the absence of standards for the content of the law, weakens its binding force, and inevitably leads to uncertainty about the existence of the law. In situations of uncertainty in relation to these areas, it follows that freedom can no longer be guaranteed by safety. This is because safety guarantees based on content-related laws always face limitations.