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초록·키워드
This article deals with some significant constitutional issues with respect to a private association.
The Korean Constitution guarantees the freedom of association as one of fundamental human rights. It includes both the positive right to associate and the negative right not to associate. Regarding the former, the current Korean system on granting permission for the establishment of a non-profit association seems problematic. According to the Korean Civil Code, the permission of a competent governmental authority is a prerequisite for establishing a non-profit organization. It is not possible, however, to litigate against the denial of the permission. From the perspective of the freedom of association, the remedy against such a denial should be allowed.
Regarding the latter, the Korean Supreme Court has been ruling repeatedly that all the grown-up male descendents of a common ancestor automatically become members of an Jongjung(agnatic descent group) regardless of their intentions. On the other hand, the Korean Constitutional Court regarded a law that required all patent attorneys to be members of a patent attorney association as constitutional. It also opined that the union shop system of the labor organization is compatible with the Constitution. In light of the freedom not to associate, it is doubtful whether or not these precedents are appropriate.
It is generally recognized that the private association is the subject of human rights. Therefore, the act of a private association can be protected by the Constitution.
The inner sphere of a private association is not directly governed by the Constitution. The horizontal effect of human right, however, should be taken into account in adjudicating the dispute between a private association and its members.
Finally, Korean courts are generally abstinent in the ecclesiastical matters. However, judges need to broaden the scope of the judicial review on disciplinary measures taken by religious associations against their members. This will better serve their rights of access to justice.
The Korean Constitution guarantees the freedom of association as one of fundamental human rights. It includes both the positive right to associate and the negative right not to associate. Regarding the former, the current Korean system on granting permission for the establishment of a non-profit association seems problematic. According to the Korean Civil Code, the permission of a competent governmental authority is a prerequisite for establishing a non-profit organization. It is not possible, however, to litigate against the denial of the permission. From the perspective of the freedom of association, the remedy against such a denial should be allowed.
Regarding the latter, the Korean Supreme Court has been ruling repeatedly that all the grown-up male descendents of a common ancestor automatically become members of an Jongjung(agnatic descent group) regardless of their intentions. On the other hand, the Korean Constitutional Court regarded a law that required all patent attorneys to be members of a patent attorney association as constitutional. It also opined that the union shop system of the labor organization is compatible with the Constitution. In light of the freedom not to associate, it is doubtful whether or not these precedents are appropriate.
It is generally recognized that the private association is the subject of human rights. Therefore, the act of a private association can be protected by the Constitution.
The inner sphere of a private association is not directly governed by the Constitution. The horizontal effect of human right, however, should be taken into account in adjudicating the dispute between a private association and its members.
Finally, Korean courts are generally abstinent in the ecclesiastical matters. However, judges need to broaden the scope of the judicial review on disciplinary measures taken by religious associations against their members. This will better serve their rights of access to justice.
본문·목차
인공지능 문자 인식 모델을 통해 추출된 텍스트로, 일부 오타나 오류가 포함될 수 있으나 지속적으로 개선 중입니다.
오류를 발견하셨다면 해당 부분을 드래그한 후 ' 를 통해 신고해주세요.
오류를 발견하셨다면 해당 부분을 드래그한 후 ' 를 통해 신고해주세요.
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UCI(KEPA) : I410-ECN-0101-2013-360-001271818
