환경권과 자연보호- 환경기본권의 기본권의 기능적 측면에서의 검토 -

Enviromental Basic Right and Preservation of Nature
- Study on Functional Aspects of Environmental Basic Rights in Korean Constitutional Law -

Park, Zin-Wan


Article 35 (1) in the Korean Constitutional Law guarantees not only enviromental right as a form of basic rights (Grundrechte), but also a legal duty of state to protection of environment. Article 35 (2) refers to taking concrete shape of environmental right as constitutional rights by the statutory law. Article 35 (3) extends protected area over notion of enviroment in a broad sense besides protected objects of environmental basic rights and natural basis for life (die natürlichen Lebensgrundlagen) as contents of legal duty of state to environmental protection.

Considering discussion about acceptance of environmental basic rights the most important prerequisite is recognition of diversiy and differentiae in environmental constitutional cognition. Authorization of legal duty of state to environmental protection as direct valid binding constitutional law has an objective effect. Subjective public legal right (subjektive öffentliche Rechte) can not be deprived from this state’s aim provision.

If unharmed, sound enviroment can not be protected through the constitution itself, all indiviudual expectation of the indiviual to participate in state benefits (Teilhabeerwartungen) must be correspondingly lowered. Constitution itself can always guarantee only prerequisite for intact enviroment, but not intact envoronment itself. If essential part of environmental protection of state is natural basis for life, a center of balance can move from environmental basic rights to legal duty of state to enviromental protection. Among the function of envoromental basic rights acceptance of function of environmental basic right as a basic right of the individual to participate in state benefits has a very important meaning for controversial environmental policy decision.