[일반논문] 한국 헌법 제23조와 독일 기본법 제14조의 해석

Interpretation of Article 23 of the korean constitution and of Article 14 of the german constitution

Subject: Interpretation of Article 23 of the korean constitution and of Article 14 of the german constitution. I have studied about the property provision in relation to the interpretation of the korean constitution and of the german constitution. The key point of the study is to find the differences of the interpretations, because property provisions of both countries are very similar. Some of our scholars tried to interpret the property provision in the way of german constitutional court. The way of interpretation of german constitutional court is called as "separation theory" in contrast to the traditional way of interpretation "threshold theory", which is maintained by the german federal common court. According to the study it is found that the way of interpretation of the german constitutional court is not applicable to the interpretation of property provision of korean constitution, because especially Article 23 Clause 3 of the korean constitution differ with Article 14 Clause 3 of the german constitution in the words, structures and contents. In the Article 23 Clause 3 of the german constitution is used the word "taking" alone, in contrast to the korean constitution, which has used the words "taking, use and restriction". Through this difference I have found the unacceptability of the "separation theory" to the interpretation of the korean property provision.