The Nation and the human rights of its people : Especially in terms of the third generational human rights

Today, it is not easy to find a view that denies that the purpose or basis for the existence of the state is the protection or realization of the basic human rights of the people. In other words, state power or state order that neglects the protection and realization of the human rights or basic rights of the people cannot be evaluated as legitimate. Since modern times, the consciousness that a democratic rule of law should not infringe on the freedom and equality of the people but should protect and realize them has become common. To harmoniously realize the basic rights of the entire people in today's world, on the one hand, if the state restricts the basic rights of the people, the necessity and legitimacy must be demonstrated, and on the other hand, the argument that the state bears the obligation to improve the overall legal system, such as organizations and procedures, to substantially and objectively guarantee the freedom and rights of the people is gradually gaining traction based on the basic rights protection obligation theory. Despite such developments in constitutional theory, the problem of state power infringing on the basic rights of the people has not been solved. In addition, although the infringement of basic rights (such as the right to self-determination of personal information and personal rights) by private persons has been made more frequently and in a more sophisticated way due to deepfakes, hacking, and flooding of false and manipulated information, doubts or criticism about the function and capacity of the state to solve this problem has been sharply raised. In this situation, the topic of “human rights of the state and the people” itself needs to be considered to determine what approach is desirable despite its constitutional significance and importance. It does not stop at redefining the constitutional theory that defines the basic rights of the people as “the people's public right by the rule of law” and has the character of the people as a subjective public authority and as a standard or guideline for forming the state's objective value order. This paper aims to examine the relevant laws and conditions in detail, focusing on the mechanisms by which the state and local governments protect and realize the basic human rights of the people. By cross-examining the history, universality, cultural diversity, and specificity of human rights, the relationship with state power, and the meaning of human rights in the national order were identified, and the role and limitations of the state to protect the basic rights of the people were reviewed, focusing on the third generation of human rights that are emerging today.