일반 : 행복추구권의 기원과 본질 = Origins & Nature of Right to the Pursuit of Happiness

다국어 초록 (Multilingual Abstract)

Right to the pursuit of happiness(RPH) was laid down in the 1980 Constitution of Korea. Many scholars thought it unnecessary to newly adopt the RPH, for Korea Constitution includes all kinds of basic rights and even the clause of unenumerated rights. Moreover, they pointed the subjectivity and ambiguity of the meaning of the RPH. This essay aims at searching for the possible origin(s) and nature of the RPH. The RPH found the first expression in the Virginia Declaration of Rights drafted by George Mason. Afterwards, Thomas Jefferson defined the RPH as an inalienable right in U.S Declaration of Independence. The happiness/safety as governmental purpose language and/or the RPH as right language were widely accepted among many state constitutions. But U.S. mainstream jurisprudence denies the status of the RPH as a U.S. constitutional right and insists no affirmative duty of government doctrine. U.S. mainstream jurisprudence liberalizes U.S. Constitution to the utmost. The origin of American libertarianism is regarded as the political philosophy of John Locke. Locke is not the only origin of RPH, although he had great influence on Jefferson`s drafting U.S. Declaration of Independence. Alternative revisionists offer a long list of philosophers who had deep influence on inventing America. The Scotish Enlightenment/Moral Sense Theorists and Continental rationalist natural law theorists are named as alternative orientations. The meaning of happiness of both philosophies is not liberal, but communitarian or social-welfarist in the european sense. This article differentiates three approaches to the nature of the RPH. The first libertarian approach tries to interpret the RPH in terms of individual freedom or negative liberty. The second republican version is to emphasize the public happiness in the sense of republican virtue, participation or civility. The third egalitarian interpretation tries to found social welfare rights on the basis of the RPH. In conclusion, the RPH has the different origins and some conflicting meanings. Nonetheless, Korea Supreme Court and Constitutional Court follow the American mainstream jurisprudence, regardless of the differences in structure and history of constitution between Korea and U.S.A.