Earticle

초록

영어

Art. 15 the EUCFR/II-75 (1) CT-IGC gaurantees the freedom to choose an occupation and right to engage in work. This occupational freedom generally can be interpreted to secure the freedom to exercise an occupation or freedom to conduct business. In the Korean Constitutional Law and the German Baisc Law where do not contain a independent provision of the entrepreneurial
freedom distinguished from the occupational freedom the leagl reason for the occupational freedom is to be inferred from one aspect of the occupational freedom or the right to property.
In constrast to these both constitution Art. 16 EUCFR/II-76 CT-IGC for the first time independently guarantees the entrepreneurial freedom as its own provision. It has very special meaning in the relation between the occupational freedom and the entrepreneurial freedom in the grundrechtsinterpretation of the EU-legal order. The entrepreneurial freedom classified as the elementary principle of the law with the occupational freedom in Art. 15/II-75 and the right to property in Art. 17/II-77 bulids up an essential element of the economic constitution of the EU.
The entrepreneurial freedom serves to not only the interests of the entrepreneur but also the objective principle of the free competition in the sense of the Art 4 (1) EC respectively Art 3 (2) CT-IGC. In the beginnig the occupational freedom contained in the section of the economic and social rights according to preparatory proposal of the presidency of the convention of the fundamental rights. On account of strong critique it was accepted in the section of the right to liberty so as to eliminate the charater of social right from it. Even though the EUCHR separated the entrepreneurial freedom from the occupational freedom, the ECJ understood the entrepreneurial freedom as a partial aspect of the occupational freedom.
Where can be founded the leagl reason why the EUCHR prescribes the entrepreneurial freedom independent of the occupational freedom? I wil try to give the solution to this question from the two point of departure. I find the first point of departure for the solution of this question in the character of the occupational freedom as the right to liberty not the social right, because the
occupational freedom as the right to liberty does not provide the right of claim for the place of employment as the basic right of performance (Leistungsgrundrecht). This character of the occupational freedom as the right to liberty can be in harmony with the specific character of the entrepreneurial freedom as an essential element of the free market economy. The second point of departure for the solution of this question is the differentiation of the control intensity between the freedom to choose an occupation and the freedom to exercise an occupation in judical review. The protected area of the entrepreneurial freedom which can be infringed easier than tha of the occupational freedom must be extended to the freedom to make an economic activity, the freedom to engage in business and the freedom of competition in order to give the entrepreneurial freedom in Art. 16/II-76 its own protected area independent of the occupational freedom in 15/II-75.

목차

I. 서
 II. 유럽헌법조약 속의 직업의 자유의 보장
 III. 유럽헌법조약상의 기업의 자유의 보장
 IV. 결론
 Abstract

키워드

저자

• 박진완 [ Zin-Wan Park | 경북대학교 법과대학 법학부 교수 ]

참고문헌

발행기관

간행물

표지보기 관심저널 등록

• 간행물명

  유럽헌법연구 [European Constitution]

• 간기

  연3회

• pISSN

  1976-4383

• 수록기간

  2007~2026

• 등재여부

  KCI 등재

• 십진분류

  KDC 362 DDC 342