헌법의 객관성과 국가의 기본권보호의무

According to general opinions, the national obligation to protect fundamental rights is related to one person's infringement on other's rights. This is a reason of protection obligation that the nation must do. Unlike USA, korean Constitutional Court and most constitutional scholars acknowledge the objectivity of constitution. So the national obligation to protect fundamental rights has a probability that the contents of protection obligation could extend. The reason is that, this national obligation is originated in objectivity of constitution and the objectivity is an abstract concept and the contents are filled with precedents and theory. The protection obligation can be valid without private man's infringement on other's rights. So a natural disaster or other fundamental rights except liberty become causes of an infringement on other's rights. This protection obligation is originated in objectivity of constitution, and the constitutional problem doesn't occur without relationship with nation. Therefore objectivity of constitution became national obligation to protect fundamental rights. The judging criteria about objectivity is the principle of prohibition of under-protection. But as the nation fulfil the protection obligation, the subjectivity of fundamental rights are occur. The judging criteria of this case is the principle of the prohibition of excessive restriction. But a confusion between objectivity and subjectivity do not exist.