기본권의 사인간 효력에 관한 재론

Legal Theories on the Effectiveness of Fundamental Rights Between Private Persons: Focusing on the debate in Japan

There has been a debate regarding Fundamental rights on whether they not only act as a basic barrier protecting the freedom of individuals which precedes the nation from the power of the state but also are legally enforceable in cases occurring between private citizens. Considering their history and legal characteristics, fundamental rights are understood as a protection against the nation in order to defend individual freedom and rights from the interference by the state. However, in modern times, not only is individual right violated by the state but it is placed under a serious threat from other individuals. The indirect application theory, the conventional opinion on validity of fundamental rights between individuals, aims to indirectly regulate actions between individuals by construing and utilizing civil law provisions to boost the value of basic rights under the Constitution. However, it has been pointed out that such indirect application has limits as it lacks specific standards on how much and which value to be reflected resulting in large variance in ‘filling of human right value’ regarding general principles, and it also does not produce practical benefits coming from differentiating indirect application and direct effect as human right regulations during the value filling process. This study seeks to find theoretical foundations as to how the fundamental rights, originally designed to protect individuals from the state power can be utilized to prevent human right infringements taking place between individuals within the boundaries of private autonomy The study critically examiners the theories and the cases in Japan where active debates have been going on with respect to the throes and the cases from Germany, France, and the U.S.A. Furthermore, this study seeks to reduce the variance existing in human rights value filling and to investigate the range of application and limitations so that courts can contribute to providing an effective remedy.