헌법정신과 인권에 관한 연구

Abstract

In relation to social contract, T. Hobbes is significant in that he presented the prototype of modern contract theory, but there is a limits in that it is necessary to have a state dominated by a ruler with absolute power to guarantee human rights. In order to solve this problem, J. Locke proposed a new social contract theory by transferring the sovereignty from the state to the people. In this way, it can be seen that there is a big difference between the national identity and the human view proposed by Hobbes and Locke, and the way of guaranteeing human rights accordingly. If Hobbes is a legal positivism and pragmatism based on the state, Locke is approaching from the point of view of natural human rights before the state. The idea of natural rights is based on 「the Virginia Bill of Rights」(1776. 6), 「the Declaration of Independence」(1776. 7) in America, 「the Declaration of the Rights of Man and of the Citizen」(1789) in France, and 「the Declaration of the Universal Declaration of Human Rights」(1948) of the United Nations. It is also reflected in 「the Constitution of the Republic of Korea」(1948) and has related regulations. However, since the establishment of the government of the Republic of Korea, human rights have been infringed in the name of maintaining public well-being and order in the unstable political system and political dynamics. This problem has already been foreseen in the Constitution of the First Republic, which stipulates individual legal provisions related to the restriction of basic rights, and since then amendments to the Constitution have been made several times, but this problem has not been solved under the long-term military regime. Fortunately, the 6th Republic Constitution(1987~present), which was finally revised, is meaningful in that the governing system has been reorganized and the provisions for guaranteeing basic rights have been considerably newly established and added. However, if the ruling party to which the president belongs fails to secure a majority of seats in the National Assembly, there is no institutional mechanism to coordinate the instability of the state administration and political conflicts, which raises concerns that the fundamental rights of the people are not properly guaranteed. For this reason, the claim that the basic rights required by the times should be guaranteed through the amendment of the Constitution coexists with the prudence of this, and therefore, national and social consensus should be made once again at this time.