헌법상 재산권보장조항의 공법적 쟁점 및 개헌방향

Abstract

This paper tries to seek legal issues and revision directions of the constitutional provisions on the protection of property rights. The economic freedom of individuals and corporations secured through constitutional freedom of contract, private autonomy, protection of private property, etc. is an indispensable condition of democracy, and in particular, property rights form the basis of socio-economic activities. This paper does not understand the constitutional property rights as relative fundamental rights but considers them as supernational natural rights. The Korean constitutional academy tends to commonly accept that the provisions of Paragraph 1 of Article 23 of the Constitution declaring protection of property rights finally recognizes property rights as personal rights at the highest normative level of the Constitution, and it does not mean recognition of supernational or natural rights but embodiment of personal rights in the actual law named the Constitution. However, property is as important as freedom because it is a prerequisite for realizing other fundamental rights. Therefore, this paper does not understand property rights as the actual rights that can be restricted by the state, but consider property rights from the viewpoint of the natural rights given to human beings even before foundation of the state. The protection of property rights includes the protection of value and the guarantee of sustainability, but it cannot adhere to the guarantee of sustainability in need of the public interest, but needs to be expanded even to the protection of value for compensation of loss. The recognition of the Constitution as a union of loss compensation is due to the failure in recognizing the difference between the German and the Korean Constitutional norms. In addition, in connection with discussions on amendment of the provisions for constitutional property rights, this paper also reexamines the property rights as the natural rights in order to prevent the harms caused by excessive intervention of the state power in the economic areas under the imperial presidential system.BR Korea has undergone rapid domestic and international changes since 1987. Faced with today`s multifaceted social environments, Korea is also requested to revise its Constitution, the highest standard of community. Such amendment of the Constitution needs to advance towards the unification of social realities and norms overcoming the partisan interests in order to develop a new Korean society in the 21st century by realizing the integration of both industrialization and democratization forces and establishing new rules in the fields of fundamental rights.