기본권경합과 본안심사

초록

With its collection law decisions of November 24, 2016 and March 29, 2018, the KVerfG gave me reason to consider what the competition is and how it should be dealt with in the constitutional review of constitutional complaints. Fundamental rights competition is understood as the relationship between the multiple fundamental rights of one and the same body of fundamental rights, in which one and the same body of public authority intervenes. The two above-mentioned decisions were concerned with whether the rules according to which a collection without its prior registration with the competent authority may not be publicly announced violated the general freedom of action of the complainants as guaranteed by Article 10 sentence 1 KV. The KVerfG finally declared it constitutional. However, it ignored the complainants' further claim that the rules in question violated their freedom of expression. In my opinion, such an approach is quite questionable. Basically, freedom of expression is more specific than the general freedom of action, so the latter must normally be replaced by the former; lex specialis derogat legi generali. Even if it is assumed that the so-called ideal competition between the two basic rights could exceptionally exist, the KVerfG should either have used freedom of expression as a more appropriate right or consider the two basic rights altogether in the weighing up of goods instead of considering the general freedom of action in isolation.

키워드