기본권의 대사인적 효력과 입헌주의 그리고 공사 구분

This study aims to discuss the essential meaning of the Constitution, constitutionalism, and what theoretical foundations the effect of fundamental rights to the privates has, focusing on the public/private distinction. In other words, the issue is what should be examined in the discussion of the effect of fundamental rights to private relations when it is considered from the definition of the Constitution under which a nation exists as a ruling group. Previous studies on the effect of fundamental rights to the privates have the tendency to mainly review legal principles of other countries or uncritically accept the principles rather than deal with what the nature of the Constitution is or what constitutionalism is. However, this study is not to suggest one doctrine should be drawn among existing theories about the effect of fundamental rights to the privates, that is, direct effects, indirect effects or no effects. Instead of reviewing the validity of these theories, the research seeks to investigate what underlies the doctrines. For discussion of the topic, constitutionalism and the public/private distinction are important ideas. The effect of fundamental rights to the privates should be examined in terms of how it is related to such basic issues as the nature of the Constitution or basic rights and the ways of judicial review, or how much it depends on the history or tradition of an individual country. To conclude, in the process of questioning what the Constitution is and what constitutionalism is, it is required to review the public/ private distinction which is the foundation of the effect of fundamental rights to private relations.