기본권으로서 자기결정권의 헌법적 근거와 현대적 전개

This study aims to examine the normative structure and contemporary transformations of the ‘right to self-determination,’ a pivotal right that practically embodies human dignity within the modern constitutional order and serves as a cornerstone of the liberal democratic basic order. Unlike traditional liberty rights under the early liberal constitutional framework—which remained primarily negative and defensive against state interference—self-determination in modern constitutional law has clarified its character as a ‘formative liberty.’ This allows individuals to proactively shape and regulate their own personal destiny, thereby securing an independent domain of fundamental rights. In particular, the principle of private autonomy, the bedrock of modern private law, has transitioned into the public law sphere, functioning as a substantive mechanism to guarantee human dignity and a general principle for the exercise of fundamental rights. The rapid advancement of science and technology in the 21st century and the sophisticated digital information environment have incorporated existential matters—once dismissed as natural providence or force majeure—into the scope of individual technical and normative control. Consequently, the exercise of the right to self-determination has become far more multi-layered and complex. This study analyzes these shifts through four core pillars: 1. The right to decide on life-sustaining treatment to protect human dignity at the end of life; 2. The right to reproductive autonomy (abortion), which ensures women’s reproductive health and self-governance; 3. The right to informational self-determination, seeking to actualize data sovereignty in a data-driven society; 4. The protection of autonomous human will against decision-nudging by artificial intelligence (AI) and algorithms. These issues transcend the intimate private sphere and directly collide with other constitutional interests, such as the state’s duty to protect the right to life, public welfare, and the promotion of the data economy. Such conflicts necessitate a more sophisticated proportionality test to justify any limitations on these fundamental rights. The Constitution of the Republic of Korea does not explicitly prescribe the right to self-determination; instead, the Constitutional Court has derived it from Article 10, encompassing the right to personality and the pursuit of happiness. The multi-layered and abstract nature of this derivation risks obscuring the normative criteria for judging the legitimacy of state penal and administrative powers. Accordingly, this study reaffirms the constitutional basis of the right to self-determination through a comparative legal review of major jurisdictions and critically analyzes the constitutional challenges faced by humans as autonomous subjects amidst a rapidly changing technological landscape. Ultimately, this research seeks to re-establish the normative firmness of the right to self-determination while proposing rational limits and procedural safeguards that harmonize with the collective values of the community. This will contribute to solidifying the ‘autonomous and responsible conception of humanity’ envisioned by modern constitutionalism within the framework of the rule of law, and to building a normative foundation that prevents human subjectivity from being instrumentalized in a changing technological environment.