네덜란드 헌법상 기본권의 수평효(대사인효) 논의 고찰

The concept of the horizontal effect of fundamental rights of the Constitution, which traditionally binds state power, can be applied directly to private parties in the civil law area dominated by private autonomy. This issue has recently been subject to various academic discussions by European countries under the theme of ‘constitutionalization of the civil law’. In the Netherlands, this issue was discussed with the term ‘horizontal effect of the fundamental rights’, in the process of constitutional amendment in 1983, The resolution was left to the legislature and the judiciary, though it was not reflected in the constitutional provisions, but it was agreed that a more flexible application of the fundamental rights to private parties was necessary. Since then, the Parliament has been making efforts to ensure the horizontal effect of fundamental rights through the general equality law, the protection of labor contracts and the revision of civil law provisions related to the protection of tenants. In the case of the judiciary, although it does not introduce any particular theory or method for the application of fundamental rights to the privates, it is generally said that it adopts a method of indirect horizontal effect. Nevertheless, the Supreme Court, without recognizing the absolute superiority of fundamental rights considers fundamental rights as one of interests in resolving civil disputes or a concrete expression of the interests of the parties. This methods is evaluated as a complementary fundamental rights in interpretation of the civil law, rather than constitutionalization of the civil law or subordination of basic rights. In today's civil litigation cases, the parties are increasingly claiming their rights violations by using the fundamental rights of the Constitution, and the courts accept easily these fundamental rights based claims as a tool of judgment. However, the constitutional right that applies to the state can not be regarded as acting in the same way between privates in disputes and the result of indirect effects are also unpredictable in its application. The Dutch case, which considers fundamental rights as a factor to supplement or substantiates an individual's civil rights in a general civil case can be helpful to find alternative way in the view of the rule of law and the principle of separation of powers.