헌법의 '인간의 존엄과 가치' 해석론에 관한 비판적 고찰

In Article 10 of Korean Constitutional Law, "Human dignity and worth" is originated from the principle of morality and became the morality of human rights or a legal right, and moreover it has been firmly entrenched as a constitutional human rights. So the Constitutional Court's interpretation of 'Human dignity and worth' should play a role a solution mechanism for the crisis of morality and conflicts of public issues in modern society which have resulted from labor division in post industrial societies. In actual, there are no any solution for social disorders and strife among the classes only depending upon resort to a tangible powers and a national integration in the complicated modern society. In according to Durkheim, he put forward a moral individualism that we have to protect human dignity and inviolability and manage to individual and community in fairness, and a solid coopration between individual and group as the unique alternative solution. The right of human diginity and inviolability is not a simple a moral human rights or a legal human rights, but it may have the normative forces as a conclusive and fundamental human rights which should protect an inherent right of human dignity and inviolability. Because if human being has an inherent dignity as a moral right, according to the morality of human rights, one can violate a human being either explictly or implictly. On the one hand, I will summarize the interpretation on the "human dignity and worth" of constitutional law as follow; (1) 'human dignity and worth' is valued the conclusive human right as ideologic premise of the fundamental human rights in constitutional law. and the human dignity rights can rely upon an interpretation between a limited human right and an absolute human right whether upon the relation with article 37⑵ in consitutional law. (2) The meaning with including the rights of human inherent dignity as a conclusive human rights can be an open detailed normative concept in according to a judge's interpretation on the contents of 'human dignity and worth' within a litigation procedure. (3) the right of human dignity and invioability as a conclusive human right can hold a subordinate doctrine with regard to the particular human rights on a constitutional law. when any particular human rights are to reply in any case, it happens to the constitutional concurrence between article 10 and an individual articles related the constitutional law.