입법자의 기본권보장의무와 의무이행의 심사기준

This paper investigates about the guarantee obligation for fundamental right of legislator in article 10 sentence 2 and the level for the implementation of obligation. This paper starts from the different viewpoint from the viewpoint of constitutional court about the judging criteria and types, whether law made by legislator for fundamental right is just or not. This paper investigates first about the leading case of constitutional court. According to the leading case of constitutional court, it is to be confirmed that constitutional court has applied ‘the principle of excessive restriction prohibition’ for fundamental restriction law and ‘the principle of minimum protection’ or constitutional limit on the freedom of lawmaking for fundamental making law. These viewpoint of constitutional court is not reasonable, because it doesn't consider the character of fundamental right and maximum guarantee of fundamental right. According to the character of fundamental right, the fundamental right has its content or not. The fundamental right of which content is made by legislator, has its concrete content from lawmaking of legislator. Therefore, ‘the principle excessive restriction prohibition’ has to be applied as judging criteria for the restriction law for fundamental right and ‘the principle minimum protection prohibition’ has to be applied as judging criteria for the making law for fundamental right. Considering the natural of fundamnetal right, I think the method of this interpretation is the most reasonable for the guarantee for fundamental right in korean constitutional law.