재산권 보장 조항(헌법 제23조 제1항)과 민법

According to article 23, section 1 of the Constitution, a property right shall be guarantied as a fundamental right, while the object, content, and limit of it shall be determined by the statute. According to article 37, section 2 of the Constitution, a restraint of a fundamental right should follow the principle of proportionality and the indispensable core of it shall not be infringed. These two provisions of the Constitution provide a puzzle: The legislator has a wide discretionary power in forming or reforming a property right while he has only restricted power in restraining a pre-existing property right; There exists no reliable criteria to discern forming or reforming from restraining. In this article, one aspect of this puzzle which should have been addressed earlier but did not would be examined: The meaning the constitutional protection of property right has to private law. Undeniably, private property is the most important part of property in article 23, section 1 of the Constitution. Legislation regarding private law is also subject to constitutional review by the Constitutional Court. As the Constitution does not tell the specification of property right but just delegates it to statutes including private law legislation, however, the Constitutional Court cannot derive the criteria for the review from the Constitution itself; It has no choice but to develop the criteria from the statute, which means that the review would be mostly reduced to that of consistency of private law. In short, the constitutional protection of property right empowers the principle of private law itself and enhances its internal consistency rather than introduces external–constitutional–value into private law. Property right, as a fundamental right, also binds general courts. The so-called horizontal effect of fundamental right, however, has little meaning when it comes to private property, because it depends on private law legislation: The most important function of so-called horizontal effect is to introduce external–constitutional–value into private law which private property right lacks. As article 23, section 1 of the Constitution vests the power to form a property right to the legislation, however, not only any creation of property right by the Constitution itself but also any judicial lawmaking regarding it might be excluded.