Development of the Theory and Case Law of Third-party Effect of Fundamental Rights in Germany : Triangular Relationship between Individuals and the State, Duty to Protect Fundamental Rights and Right to Request Protection

Third-party effect of fundamental rights means that fundamental rights affect private law relationships, and due to the supreme normativity of the Constitution, it affects not only civil law but also the entire legal order, including administrative law. Today, in Germany and Korea, it is generally accepted that the third-party effect of fundamental rights indirectly takes effect through the judge’s interpretation of general provisions of private law. However, it is being criticized from the perspective of logicality and specific application. Third-party effect of fundamental rights is embodied through the state’s duty to protect fundamental rights and the people’s right to claim protection of fundamental rights in the triangular relationship between individuals and the state that resolves the conflict of rights. Its essence is fundamental rights against the state. In that case, the third-party effect of fundamental rights is a form in which individuals exercise their right to claim protection against the state (legislative, administrative, and judicial) in the event of a conflict of rights between individuals. Judicial remedies are constitutional petitions when filed against the National Assembly, administrative litigation when filed against an administrative agency, and constitutional petitions for trials when filed against a court. Ultimately, it becomes a triangular relationship involving the National Assembly, administrative agencies, and courts, and this should be resolved by finding an appropriate balance between the state's principle of proportionality for the infringing individual and the state's principle of prohibiting insufficient protection for the infringed individual.