외국인이나 외국 공권력에 의한 기본권 가해시 국가의 기본권보호의무- 독일 연방헌법재판소와 유럽인권재판소 판례를 고찰하며 -

Exercise of sovereignty means effective control of the exercise of state sovereignty and the exercise of extraterritorial force in the territory of another State. If the fundamental rights-bound sovereign employs civilian to fulfill its tasks, this does not exempt it from the fundamental rights commitment. However, the sovereign is subject to supervisory duties within the scope of the state duty to protect fundamental rights paradigm, which will be discussed later. If there is a corresponding international agreement, and not even if its activity is approved or tolerated in the territory of the state, the foreign sovereign is at best bound by the fundamental rights applicable to national sovereignty. Since private actors are always the bearers of fundamental rights themselves, conflicting legal interests in every such state duty to protect fundamental rights, whose weighting and consideration, according to the correct interpretation of the Constitution, is regularly the task of the legislator. Person of fundamental rights is considered vulnerable if either the impending violation of fundamental rights is irreparable, the emerging development uncontrollable or the potential conflict between the fundamental rights persons involved is not autonomously regulated. Basically, the courts do not differentiate whether the private actor, who is to be attributed to the fundamental rights-threatening behavior, comes from domestic or abroad. It can therefore be concluded that the key to solving current challenges to the protection of legal interests vis-à-vis domestic and foreign private actors lies at the level of the law, not that of the protection of fundamental rights. If the state duty to protect fundamental rights against private threats is recognized in principle, it remains to be determined whether and to what extent the state is subject to the state duty to protect fundamental rights vis-à-vis a foreign state power acting on the domestic territory. For the state duty to protect fundamental rights to protect the actions of the state authority, however, is not the actual trigger, but the legal consequence of the constitutional protective effect. In the field of external fundamental rights-threatening behavior, the state would then only have to try to promote the protection of individuals from foreign states and foreign private persons through political appeals or international treaties. Basically, we will have to affirm the state duty to protect fundamental rights, even in the light of the right of state responsibility.