공법상 강제결사의 기본권 주체성 문제와 위헌 심사

Human beings are inherently social creatures. Consequently, individuals organize into collectives, wherein they deliberate and engage in exchanges to determine courses of action. These collectives form on the voluntary volition of natural individuals and, under shared purposes and autonomous regulations, sustain vitality through self-governance. Private associations, whether driven by political objectives or the pursuit of distinctive specialized purposes, possess the agency to enjoy both active and passive freedom as subjects of volition within their assemblies. However, instances frequently arise wherein the state compels the amalgamation of individuals in the private sphere for the sake of certain public-interest objectives, leading to the formation of organized entities. These entities, legally recognized as associations under public law, acquire a specified legal status, and individuals meeting the criteria stipulated by relevant laws are obligated to join them. Furthermore, those who become members of such associations are required by law to fulfill certain obligations, such as dues or fees. The contentious issue arises when the state intervenes in the private domain in this manner, organizing associations based on legal provisions, as to whether individuals eligible to join such entities can assert a violation of their passive freedom of association. The Constitutional Court, when an organization is recognized as a public juristic person by virtue of establishing compulsory associations in certain professional domains pursuant to various statutes, holds that the passive freedom of association for subjects of fundamental rights is not guaranteed under Article 21(1) of the Constitution. Additionally, the Constitutional Court asserts that associations formed through compulsory means under public law cannot be considered subjects of fundamental rights, including the freedom of association outlined in Article 21(1) of the Constitution. However, even if a forced association falls under a public corporation, it may be examined based on the general freedom of action derived from Article 10 of the Constitution or the freedom of association under Article 21 of the Constitution. Given the foundational considerations and examination processes related to the interpretation of the freedom of association, the Constitutional Court's determination on the schematic subjectivity of fundamental rights in this context requires critical analysis for potential improvements.