재산권의 기초와 타인에 대한 배려 - 헌법 제23조제2항에 대한 법철학적 고찰 -

This paper examines what was discussed and suggested concerning the legitimacy of private property by Aristotle, Hegel, and Locke. It is shown to be the case that every theory examined here includes the point of "unselfish concern" either for the self-perfection or self-realization of other members of the society (Aristotle, Hegel), or for their preservation or welfare (Locke). In this way, it attempts to grasp the meaning of the Article 23 (2) of the Constitution of the Republic of Korea which provides that "the exercise of property rights shall conform to the public welfare" through analytically clear understanding of the relationship between the justification of the system of private property and the logic of unselfish concern. It concludes that the duty to conform to the public welfare in exercising property rights imposed by the Constitution is not a sort of special duty to prevent harm which is conceived of constituting the standard incidents of ownership by T. Honoré, but rather one of the general background constraints on the individual behavior in the social context. It suggests that the point of unselfish concern in the article of the Constitution can be better understood to belong to what J. Waldron calls the general background rules of action.