기본권 효력확장이론과 쟁점에 관한 고찰

This article examines the theories and issues about the application of fundamental rights to the private actors. The constitutional ground of extension of the effect of fundamental rights can be found in character as objective principles for the whole legal and social order of the constitutional law and the state duty of protection in Article 10. However, the court applying fundamental rights to the private parties should be passive considering the principles of the rule of law and the separation of powers. Korean Supreme Court adapted the indirect effect theory and stated that fundamental rights should influence the interpretation of private law through open and general clauses such as good faith, good morals and public polices. But it is difficult to predict the concrete method of application and the result. In the background expanding of the effect of fundamental rights exist the private and social powers that can have a risk of violating the weaker’s fundamental rights and are exercising public functions and have close relationships with state. Therefore, the scope of the extension of fundamental rights needs to be narrowed to these privates parties, not individuals with no power and close nexus with state. It is the one of the solutions keeping the rule of law and state duty of protection. Also, the object of constitutional complaint which is last process of fundamental rights protection is limited to public powers. Constitutional duty of state should not be diluted by transforming public role into that of privates. Therefore, it needs to expand the interpretation of the meaning of ‘public powers’ according article 68 (1) of Constitutional Court law to the private powers that have similar function and close relation with public powers.