재난과 헌법 : 스텔라데이지호 침몰 사고의 헌법적 쟁점을 중심으로

The sinking of the Stellar-Daisy in March 2017 in the Atlantic Ocean, thousands of kilometers from South Korea's territorial waters, sparked controversy over the scope of responsibility that the state should bear in relation to the disaster. Furthermore, in relation to disasters, controversy has arisen over the constitutional rights that the people can claim against the state. Even if the constitutional right corresponding to the state's duty to protect constitutional rights can be recognized, this constitutional right is limited to the right to demand criminal legislation related to disasters. Therefore, the fundamental rights of the people related to disasters should be expanded to positive rights such as the right to mourn the dead and the right not to suffer an unfair death. The right to mourn the dead means the right to an appropriate funeral through the collection of the body or remains. The right not to suffer an unfair death means the right not to die unfairly by identifying the cause of the accident and the cause of death. In the case of positive rights such as the right to demand criminal legislation related to disasters, the right to mourn the dead, and the right not to suffer an unfair death, the proportionality principle, a constitutional principle required for the restriction of fundamental rights, should be embodied as the principle of the prohibition of excessive deficiency. When judging whether an certain positive right is infringed according to the principle of the prohibition of excessive deficiency, the entire system that specifically forms the positive right should be reviewed as a whole. Accordingly, such the positive right cannot be understood as the right in which a party to a specific case can claim specific benefits individually necessary in a specific situation.