Traditionally, the constitutional rights is understood to be a defense right against infringement from government power to protect individual freedom and right, so the validity is not considered to be in effect between equal private persons. However, in the modern times, the constitutional rights have frequently intruded by individuals who have enormous social and economic powers such as conglomerates, labor unions and political parties.
Under these circumstances, in order to practically guarantee personal freedom, ‘the effect of fundamental rights to the privates’ that fundamental right does not only bind government power, but also bind the relation between private persons emerged.
Currently, there are no big arguments about whether the effect of fundamental rights to the privates should be admitted or not, instead, as there is no specified law in Korea Constitution, so many judicial precedents and theories are discussed on what basis should the third effect of fundamental rights be admitted.
In America, the issue of the effect of fundamental rights to the privates was raised for the solution of racism. "State Action Theory" was born and has been developed in the United States by the decisions of U.S. Supreme Court. According to the Article 14 of the U.S. Constitution, the State should obey the due process in depriving the life, liberty and property of the people and should provide equal protection of laws. Hence, some private actions could constitute state action to which the Article 14 of the U.S. Constitution could apply.
Presently, Korea jurisdiction doesn’t show consistent attitude in dealing with the third effect of fundamental rights. However, through many judicial precedents and as scholars take indirect effect theory, Korea is introducing the idea of public law that respects and guarantees fundamental law without pulling down dual system of public and private law, maintaining the jurisdiction principle of freedom and private autonomy. In order to approach this problem, I will research “State Action Theory” in America and review the acceptance of the theory in Korea.
Finally, this paper is intended to review the requirements on effect of fundamental rights between private individuals, life normativity of constitutional law and so on. This approach will be helpful to understand the issue in relation to the effect of fundamental rights to the privates. It will give the chance to review the horizontal effect debates in Korea.