독일에서 기본권 제3자효 비판 및 제도적 보장의 진정한 의미: 기본권과 제도적 권리 및 일반 법률상 권리, 권리의 3단계 구분

The binding of fundamental rights to individuals and the third-party effect of fundamental rights have been argued based on the “Objective Ordering of Values” of fundamental rights. Has it satisfactorily fulfilled its role as a concrete argument in positive constitutional law and as a logical resolution standard in legal practice? Since the third-party effect of fundamental right goes against the positive constitutional law and the distinction between public and private law, it inherently contains contradictions in application and may cause confusion in legal practice. However, according to the supreme normativity of the constitutional law, private law relations should also be based on the constitutional effectiveness and constitutional discipline, so the “Institutional Guarantee” was raised that essentially guarantees private legal order through Institutional Guarantees for the private property system. According to this, the specific formation of the system is left to the legislator, and private rights between private parties are not derived directly from the constitutional law but are born from the legislator’s institutional legal formation, so they are legal rights, and the state - especially the legislator - has a constitutional duty to guarantee the essence of the private legal system. In other words, in the positive law system, subjective public rights are divided into “Constitutional Fundamental Rights (Primary Public Rights)” and “Legal Institutional Rights (Secondary Public Rights)”. “Legal Reservation of Fundamental Rights Formation” of fundamental rights that arise from the Objective Ordering of Values of fundamental rights, such as property rights, are anyway fundamental rights under the Constitutional law. In contrast, Institutional Guarantees and Institutional Rights born from them, such as private rights between individuals or social rights, are legal rights. Therefore, the problem arises that citizens cannot claim infringement of fundamental rights to file a constitutional lawsuit. In the end, citizens will be able to file a constitutional lawsuit against the legislator of the private law system on the basis of violation of fundamental rights, which are primary public rights, such as Human Dignity, General Freedom of Action, and the Right to Equality.