기본권보호의무와 재난관리법제에 관한 연구

A Study on the Duty of Basic Rights Protection and the Legal System for Disaster Control

Traditionally, states have been recognized both as a protector of basic rights and an infringing party against them. Based on the conventional perception, the basic rights are said to have defensive and protective functions. Primarily, the basic rights are understood as a bundle of rights that are claimed toward the state as subjective civil rights. It was argued in the German courts and academia and now is generally accepted that the basic rights of citizens have the traits of not only defensive rights against the state but also of objective public values or value-setting principles. The so-called double aspects of the basic rights and the theory of their multi-dimensional nature have begun to influence court rulings and academic doctrines in Korea. In particular, the problem has been raised from the 1970s that citizens should be legally protected from social threats to their life, health, environment, etc. Since then, there has been plenty of controversy whether the duty of basic rights protection and the right to protection could be invoked on the basis of constitutional interpretation. By delving into the base and contents of the duty of basic rights protection discussed in Germany, this study aims to realize the right to constitutional safety . Constitutional safety could be defined to mean that the life, liberty, property, etc. of individuals should be shielded from dangers posed by actions or states of things that are prone to cause harm. The right to safety, in a broad sense, is protected by an invocation of existing constitutional basic rights, but the discussion on the legal nature of citizens right to safety that can be deduced from the government s duty to prevent disasters is limited. Therefore, in order to improve the legal system for disaster prevention and by interpreting the duty of basic rights protection and the right to protection in terms of constitutional perspective, this study seeks to take issue with and to conduct an analysis into how the current legal system for disaster prevention is laid out. How to ameliorate legal policies regarding the legal system for disaster prevention is discussed by means of these comparative and interpretive reviews.