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논문 기본 정보

자료유형
학술저널
저자정보
박진아 (고려대학교)
저널정보
영남대학교 법학연구소 영남법학 영남법학 제28호
발행연도
2009.1
수록면
221 - 249 (29page)

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The European Union has exerted all effort to make “a single Europe” in the last sixty years. In this context, there is no exception with making a uniform code of law. The codification of fundamental rights showed steady movement regardless of its importance of the individual rights for the integration of the European countries. The Treaty on the European Union (TEU), adopted in 1992, expressly stipulated “fundamental rights” in the provision article F (now, 6(2)) for the first time in the EU, however, did not address the content of rights. For this reason, the European Court of Justice (ECJ) has played an important role in admitting the notion of fundamental rights as a general principle which may constitute an integral part of the EU Law. Meanwhile “The Charter of Fundamental Rights of the European Union” (hereinafter “the Charter”) was drafted separately from the TEU. In 2000, even though the Charter was signed and proclaimed as a non-binding instrument by the presidents of three main institutions of EU, it became the first instrument to include the whole of civil, political, economic and social rights altogether. And now, the Charter holds the same legal value as TEU according to the article 6(1) of TEU which was amended by the Lisbon Treaty. This is the most notable change of fundamental rights protection in the EU in the Lisbon Treaty. The Lisbon Treaty also puts EU an obligation to accede the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), which will settle possible conflicts of jurisdiction between the ECJ and ECHR by giving the primary authority to ECHR regarding the protection of fundamental rights in EU. On the other hand, the change via Lisbon Treaty was unlikely to have much impact to the Charter, despite of being established in the form of non-binding declaration, since it is actually binding to all European institutions, bodies and member state as an important EU document, and also invokes as one of sources of the decision in ECJ cases. Moreover, most of the rights contained in the Charter reaffirm several sources of EU Law which already have binding force. The provisions of the Charter describe fundamental rights rather in detail. Nonetheless it still needs to be defined much more clearly through interpretation and implementation of EU institutions, ECJ and ECHR. Therefore, we have to pay attention to the development of the Charter continuously after the enforcement of the Lisbon Treaty.

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