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Human dignity and the rule of law

  • Journal of Human Rights Studies
  • Abbr : JHRS
  • 2021, 4(2), pp.271-305
  • DOI : 10.22976/JHRS.2021.4.2.271
  • Publisher : Korean Association of Human Rights Studies
  • Research Area : Social Science > Law > Law of Special Parts > Human Rights / International Human Rights Law
  • Published : December 31, 2021

HOH ILTAE 1

1동아대학교

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ABSTRACT

When human dignity means “the self-existence of a human being with a personality and the value of existence for all human beings themselves and for their own purposes at the same time”, the basis for human dignity is as follows. Humans formed the economy, culture, and social order in solidarity and cooperation with others for their own freedom and safety, and the human society thus formed the basis for the maintenance of individual freedom, peace, and just life. This ability of humans has been structured to “recognize the superior ability to be fundamentally distinguished from other living things about themselves and to be recognized as a subject worthy of respect for themselves.” Human beings are subjects who have served and devoted to the development of the society to which they belong. If we have formed a human society that deserves human life through the service and sacrifice of other humans, the society is responsible for serving such humans as a decent object. If you are a mature human being, you are the subject who is responsible for forming a healthy and peaceful society by grasping your correct behavioral guidelines as your own insight. As a burden on humans' responsibility for human society, society or the state should make humans the object of dignity. If humans are so dignified from the state or society, they must be a society that presupposes a form of governance that can guarantee the basic values of human society through free and democratic political participation, and on the other hand, the rule of law can be guaranteed to fully enjoy human self-determination and happiness. When this rule of law means a code of conduct so that human dignity and value can be sufficiently lost within a social community, the following practical principles must be faithfully operated, including the organization of state power ‘the principle of checks and balances’. Since the rule of law places the realization of freedom, peace, and justice of the people, the state action must comply with procedural and formal requirements such as clarity, specificity, computability and predictability, objectivity, and safety. The rule of law should be based on the principle of excessive prohibition or proportionality regarding the formation and administrative action of legislation. When judging the principle of proportionality, the legitimacy of the purpose, the suitability of the means, the minimum damage, and the balance of legal interests should be recognized as important evaluation criteria. The principle of presumption of innocence and the principle of due process, including the principle of legality, must be thoroughly observed. Therefore, judicial activism by judges should be unacceptable. The rule of law should not infringe on the essential content of basic rights under the constitution. In particular, there should be no inherent infringement on life and body freedom, equal rights, and private autonomy. For example, since life is the backbone of human dignity, deprivation of life cannot be allowed in any case, so the death penalty as a punishment system is never acceptable in our constitution and actual law.

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