인권과 기본권의 개념적 고찰

The purpose of this paper is to make a conceptual definition of the human rights and fundamental rights as one of the basic principles of our constitution through reviewing the concepts of human rights and fundamental rights in the Constitution of Korea, Japan and Germany. It would be indisputable that human rights is one of the most basic principles that penetrates into the Korean constitution. However, it is not clear concept as to what basic human rights contain, what it means to be fundamental, and what basic rights are related to human rights, they are often used without distinction consciously or unconsciously. Since the 1960s, so-called new human rights have emerged, while attempts have been made to reorganize the existing human rights system along with the question of their position within constitutional structure, on the other hand, the expansion of the human rights concept causes a risk of obscuring the original meaning of human rights. Therefore this study starts from the question of whether it is worth arguing about the concepts of human rights, fundamental rights, basic human rights, and develops a preliminary review of the relationship of these terms, especially from the perspective of the comparative law within the context of German and Japanese Constitutions. In this article, I mainly examine the interpretation and revision of the concepts of human rights and basic rights in the process of enacting and revising the Korean Constitution historically and comparatively. First of all, I consider accepting the concept of God-given nature rights of man, human rights and fundamental rights in modern legal theory. After examining the concepts of human rights and basic rights in the German Constitution and Japanese Constitution as its successor I try to define human rights and fundamental rights on this base.