자유권에 대한 제한과 정당화 방식의 재구성

Abstract

As the title shows, this paper aims to reconstruct the method of justification in relation to the rights to liberty. To this end, it was first reviewed whether the concept of ‘the reservation of law forming fundamental rights’ could be maintained. The reason why this problem should be considered important is that this notion implies that if a law forms rights, the rights cannot be limited, and therefore it is fundamentally impossible to violate rights. However, this notion cannot be maintained because it is the laws that are formed, not the fundamental rights. More specifically, fundamental rights do not exist by being concretized into law but already exist before they are concretized into law, and it is not some of the laws with a formative nature should be proportional but all laws should be proportional because they are formative. One after another, I criticized the existing view of classifying the principle of proportionality as ‘Übermaßverbot’ and ‘Untermaßverbot’. One of the reasons is that if the principle of proportionality is understood in this way, the principle of proportionality can not be a universal tool to justify restrictions on the rights to liberty. And then, I said that when protective right is a problem, übermaßverbot based on the legal maxim “in dubio pro libertate” cannot be applied. This is because protective rights are in the form of “too few disadvantages, more disadvantages” or “too many benefits, less benefits”, unlike the claimant usually exercising the right in the form of “too many disadvantages, less disadvantages” or “too few benefits, more benefits”. Above all, the reason for this is that the legal maxim “in dubio pro libertate” is in contrast to the legal maxim “in dubio pro securitate”, that is to say, ‘in favor of public interest’, and in this respect, the legal maxim “in dubio pro libertate” should be understood as “in favor of the person to whom the legal effect attributed”. Based on this understanding, I concluded that the principle of proportionality in the wide sense is applied when the defensive right in the form of “too many disadvantages, fewer disadvantages” or the entitlement in the form of “too few benefits, more benefits” is problematic. In the same context, I concluded that the principle of proportionality in the narrow sense is applied when the defensive right in the form of “too many benefits, less benefits” or the entitlement in the form of “too few disadvantages, more disadvantages” is problematic. Eventually, the principle of freedom was formulated as follows: “The principle of proportionality in the wide sense applies where the claimant requires that the law be changed in favor(①), and the principle of proportionality in the narrow sense applies where the claimant requires that the law be changed in a disadvantageous manner(②).”