한국 헌법상 제도보장과 기본권보장의 구별과 상호 관계에 대한 고찰 ― 제도와 권리의 개념상 구별에 기반한 논증을 중심으로 ―

In Korea, institutions guarantee(Einrichtungsgarantie) theory has been a prevalent position for a long time. The traditional institutions guarantee theory distinguishes between institutions guarantee and fundamental rights guarantee. But the traditional theory cannot be a prevalent position no longer because there are some criticisms against the traditional theory in the view of new fundamental rights theory. It is necessary to review both the traditional theory and criticisms and to suggest alternatives of drawback of the theories. For the review, it is needed to consider the validity of distinction between institutions guarantee and fundamental rights guarantee and the relationship between institutions guarantee and fundamental rights. Those are done by using the concept of institution and right as theoretical framework in this paper. Without reference to character of fundamental rights, institutions guarantee and fundamental rights guarantee must be conceptually distinguished because of the conceptual distinction between institution and right. There are institutions guarantee provisions which coexist with fundamental right provisions and a sharp distinction is made between institutions guarantee and fundamental rights guarantee basically in Constitution of the Republic of Korea. Institutions guarantee and fundamental rights have some relationship. It means that institutions guarantee provisions are not direct legal basis for making a new fundamental right but can be indirect legal basis for fundamental rights. This is a preliminary study on new institutions guarantee theory and further study will be needed for the improvement of institutions guarantee.