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Public Concept and Guarantee of Fundamentals Rights in France

  • Public Land Law Review
  • Abbr : KPLLR
  • 2020, 91(), pp.327-340
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law
  • Received : July 31, 2020
  • Accepted : August 21, 2020
  • Published : August 27, 2020

BAEK YUN CHUL 1,  Lee， Dong-Kwang 2

1대구사이버대학교
2남서울대학교

Accredited

ABSTRACT

The text of the French Constitution itself has no provisions on basic rights, and the basic rights regulations are stipulated in the full text of the Fifth Republic Constitution. Today, the 2004 Environmental Charter is also recognized as a basic right regulation. These regulations constitute constitutional blocks. The general representation of the limits of rights in it is Article 4 of the French Declaration of Human Rights, where freedom is to achieve everything that does not harm others. Therefore, the exercise of each natural right is limited only to securing the enjoyment of the same rights for other members of society. These limits are determined only by law.' Article 5 also states that the law has the right to prohibit only acts harmful to society. All acts not prohibited by law shall not be obstructed, nor shall anyone be forced to commit acts not ordered by law.' These regulations are based on Article 6's "Law is the expression of the general intention" and provide a basis for negatively identifying the review of the constitutionality of laws under the Constitution in the first place as a regulation representing legal centralism. Therefore, there is no regulation of basic rights by public interest, such as the Korean Constitution, and the restriction of basic rights in the French Constitution can be understood as an inherent limitation by expressing in Korean the "others have the same rights." And this French basic authority limit is recognized by the aggregation of the ruling. In addition, the principle of general interest in France and public welfare in Article 37 of the Korean Constitution is the basis for the judgment of unconstitutionality. In this regard, I think it is also necessary to discuss the link between the criteria for judgment in various public liberties and the criteria for judgment on basic rights. The concept of French basic rights has until recently been ignored within the real law. The concept of basic rights was born with the Universal Declaration of Human Rights after World War II. The guarantee of basic rights in today's Constitutional Court is thought to be better understood by considering the unique ways of freedom and rights development in France.

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