위험사회와 관련한 안전권의 주관적 권리성에 관한 고찰 ― 과학기술 발전의 헌법적 기제로서 재판청구권으로의 매개 역할을 중심으로 ―

In a risky society, the distribution of risk is a matter of determining the potential risks and putting in place preventive safety measures. In this respect, the distribution of risk is also a matter for a safe society. Safety is the protection of freedoms and rights from outside intrusion. The first and foremost reason for the existence of the state is to ensure this safety. Risks from modern science and technology are not recognized empirically, but their likelihood of occurrence is inferred to some extent through scientific and mathematical methods. In this respect, it is under the dominant influence of the expert community. However, its influence is not absolute. This is because even expert judgments are accepted differently depending on the perception, trust, and social context of the members of society. On the other hand, existing theories and dogmas about fundamental rights are based on a liberal view of the state and the individual as opposites. Therefore, it is not easy to theoretically recognize a connection between the potential risks posed by modern technology and the violation of fundamental rights of individuals. This leads to a lack of standing, making it difficult for individuals to address the risks posed by technology in court. On the other hand, the right to safety, due to its nature as a methodological and formal right, allows us to approach fundamental rights with a new perspective that reflects a paradigm shift in the changed environment brought about by science and technology. When the existing theories and dogmas of fundamental rights can no longer sustain the rationality of the legal system, the right to safety becomes a unique right for the need to secure a new level of safety that replaces legitimacy. This brings the need for and justification of safety to a new level by revealing the reasons for state existence that trump legitimacy in a legal vacuum. The right to safety is therefore the constitutional basis for deriving the state's obligation to protect fundamental rights from potential risks posed by science and technology. In particular, as a subjective right, the right to safety allows risk judgments and safety measures to be reconfigured according to social contextual interpretations. This is because the right to safety allows individuals to incorporate their self-perceived subjective risk into the constitutional system through the judicial process. This is made possible by the right to safety's role in extending the protection of the substantive fundamental rights it protects to potentially risky situations and linking them to the right of access to courts. Moreover, while the right of access to courts has the character of a democratic fundamental right that shapes the will of the state from the bottom up, it also has the character of a right that is part of the state's power. As a result, the scope for the right of access to courts to be exercised as a functional power control tool via the right to safety may be expanded. It contributes to the establishment of a self-regulating system of risk management by the state and society within the huge technological sphere of modern society.