사적 자치영역의 기본권보호의무 ―규범이론적 기초와 그 함의―

Intervention based on the duty to protect basic rights in the private autonomy area changes the result of the contract which was made by parties who exercise their freedom of legal action. And it raises the question of whether it violates the principle of self-determination and self-respon- sibility. The teleological and paternalistic accounts avoid difficulty of duty to protect basic rights in this area by regarding private autonomy principle as purely instrumental. But since they explicitly go against our constitutional norms, they cannot be correct normative theoretical bases. The traditional account which tries to be consistent with constitutional norms recognizing private autonomy principle is also unsuccessful. This account says that when state’s intervention is justified, the consent given by one of the party is not valid, because the conditions of substantial private autonomy are not satisfied, so the other party has done harm without the consent. The problem with this account is that those conditions don’t always need to be satisfied for legal action to be valid. This problem was caused by lock and key/autonomous authorization model that it takes as theoretical basis. The fair transaction model does not reduce the sources of normative invalidity to the flaws of consent. The fair transaction model suggests that for a normative transformation to occur, parties must treat each other fairly. According to this model, even if consent is valid, enforcing contracts which resulted from unfair treatment can constitute violation of the duty to protect basic rights. The criteria for sorting out the issues with unfair treatment and the appropriate test can be consistently constructed by applying the due process in a broad sense. The idea of ​​due process in a broad sense is that special institutional authority that can control resources or opportunities which are important in the lives of members must comply to certain limits and conditions implied by essentials of justification of the authority. From this theoretical point of view, exercise of institutional authority which violates the limits and conditions is regarded as unfair transaction, and state’s enforcing the contract from such unfair treatment amounts to the violation of the duty to protect basic rights to protect. The criteria and tests consistent with constitutional norms can be constructed from this theoretical basis, Protective measures that are justified by the test which embody formal and substantial due process have clear limits in their implementation, so the tasks of the social state principle and those of the rule of law are not confused. In addition, those criteria and tests have merits to ensure implementation of duty to protect basic rights where necessary without falling into the dangers of paternalistic or teleological interventions.