원칙이론에서 보호권의 법리 - 헌법재판소의 과소금지원칙과 관련하여 -

This article aims to analyse constitutional rights to protection in the principletheory and to evaluate precedents of the Constitutional Court. Rights to Protection areconstitutional rights that a constitutional subject has against the state, that the stateprotects him from interference by third parties. The core problem originates in thefact that to protect the one side is to interfere with the other. In order to analyse theproblem of constitutional rights to protection, the principle theory has introducedseveral tools such as Law of Balancing, Weight Formula, the concept of a right topositive state action, an alternative or disjunctive structure and so on. Firstly, this article shows how to define rights to positive state action and rightsto protection. Secondly, it is explained that a structure of violations of the defensiveright can be reconstructed with Law of Balancing and Weight Formula in theprinciple theory. The problem of violations of the protective right will also beargued. Thirdly, all these represent that the constitutional court has not properlydemonstrated how constitutional duties or rights to protection work in several cases.