헌법에 열거되지 않은 권리의 헌법적 근거와 해석론적 접근 -한국 헌법 제37조 제1항과 미국 수정헌법 제9조를 중심으로-

This paper systematically examines the constitutional basis and interpretive standards for strengthening the legitimacy of unenumerated rights in the context of Article 37(1) of the Constitution of the Republic of Korea, and analyzes their normative implications through a comparative perspective with the Ninth Amendment of the U.S. Constitution. The modern constitutional order embodies universal values such as human dignity, freedom, and equality within the framework of positive law, thereby forming a dual structure of natural and positive rights. Building on this duality, this study theoretically elucidates the process by which unenumerated rights are institutionalized from claims rooted in natural rights to the minimum core within positive law. To this end, the study conducts a comparative analysis of the normative structure and judicial interpretive approaches of Article 37(1) and the Ninth Amendment, focusing on relevant decisions of the Constitutional Court of Korea and precedents of the U.S. Supreme Court. The analysis reveals that Article 37(1) plays a pivotal role in supplementing the limitations of the enumeration of rights and securing the openness of fundamental rights protection. In particular, this study proposes a combined approach of structuralism and philosophical interpretation as the interpretive basis for rights derivation, attempting to constitutionally justify new rights through a complementary rather than singular interpretive method. Based on this framework, the three standards for strengthening legitimacy-constitutional grounding, necessity, and systematic harmony-serve as practical criteria for determining the recognition of unenumerated rights. Moreover, this study empirically examines the realistic issue of conflicts among fundamental rights, demonstrating that Article 37(1) can function as a principle of adjustment when unenumerated rights potentially clash with existing explicit rights. In conclusion, Article 37(1) is not merely a supplementary provision but a constitutional platform enabling the creation of new rights and the systematic harmonization of existing rights. Consequently, the Constitutional Court of Korea should further develop an active interpretive model that combines structuralist frameworks with philosophical interpretation. Such an approach can function as a practical constitutional model that simultaneously achieves the expansion of rights and the stability of the constitutional order.