미국헌법상 국가행위이론에 관한 고찰

The United States Constitution applies almost exclusively to action engaged in by government or to private action that can be fairly attributable to government. The state action doctrine had its birth in the Civil Rights Cases. The facts of the case, and the majority and dissenting opinions of the Court, contain directly or indirectly all of the main conceptual questions later probed by the courts under the state action doctrine. Accordingly, this article will first explore those conceptual questions in the facts and opinions of the Civil Rights Cases. Part II introduces the subsequent conceptual history of the Civil Rights Cases and state action doctrine. As to each state action question, this article will proceed chronologically from the Civil Rights Cases to the present day. Part III and IV discuss the "public function analysis" and "state nexus analysis." These parts describe the conceptual history of the public function question under the state action doctrine and state nexus analysis joined public function analysis as one of three relevant factors in determining the presence of state action. As a conclusion, part V explains how we should adopt state action doctrine into the Constitutions of the Republic of Korea as a tool for the fundamental right protection under the cognizance of the constitutional effect on the private entity.