헌법 제22조 제2항의 의미와 심사기준에 대한 소고

Article 22 (2) of the Constitution stipulates that “[t]he rights of authors, inventors, scientists, engineers and artists shall be protected by Act.” This article is unique in that “authors, inventors, scientists, engineers and artists” (authors) are hard to define legally and their unspecified “rights” are not an object of enjoyment or guarantee but of “protect[ion].” The meaning of this Article can be defined more clearly with reference to the Article 5 (1) of the International Covenant of Economic, Social and Cultural Rights, which shall have the same effects as the domestic laws. Authors refer to creators, who have rights related to both moral and material interests from their productions. The protection needs to be effective in securing for authors moral and material interests. When holders of intellectual property rights (IPR) claim the unconstitutionality of a law concerning their rights, the Constitutional Court (Court) assumes that IPR are property rights and then decides whether a law infringes on their property rights which are guaranteed pursuant to Article 23. However, when persons who contribute to the creation of intellectual property but are not considered IPR holders claim the unconstitutionality of a relevant law, the Court cannot examine whether it infringes Article 23 but instead examines whether it violates Article 22 (2). Considering that “the rights of authors” cannot be interpreted as concrete fundamental rights, the Court is required to decide whether a statute goes beyond the limits of legislative discretion.