한국 헌법과 사회적 평등 - 현황과 법적 쟁점 -

Abstract

Social inequality in Korean society is becoming very serious. This is highly regrettable as the nation aspires to a democratic welfare state with social justice being the nation's goal and basic social rights explicitly guaranteed by the constitution. The aim of this paper is to look into legal reasons why the discrepancy between constitutional reality and norms in terms of social equality deepens. Above all, the paper will explore how the ideal of social equality is envisaged to be fulfilled in value orientation and normative system under the Korean constitutional law. In particular, it will explain that the ideal of social equality is enshrined in a variety of constitutional provisions ranging from those declaring the basic value orientation of constitution-making such as the Preamble, Article 1(form of state as a democratic republic), Article 10(the protection of inalienable fundamental human rights of individuals) and those guaranteeing social rights between Articles 31 and 36 to those related to the economic order including Article 23(the right to property). Even the international human rights agreements in pursuit of social justice can be regarded as legal bases of social equality in Korea through Article 6 (1) of the Korean Constitution regarding the domestic incorporation of international law. Then the author moves on to examine some legal issues through which the ideal of social equality pursued by the Korean Constitution is fulfilled. Firstly, the paper points out the ramifications of the legalization of social equality that is realized in the Korean Constitution by way of guaranteeing individual’s rights rather than declaring relevant principles. In this regard, the stress is given to the possibility that social rights become concrete rights through the application of practical principles such as the principle of liberties and the rule of maximum guarantee on the condition of available resources. In this regard, it is also stressed that there is a strong need to elaborate and articulate the minimum standard on the basis of realistic and positive researches to support a concretized level of social protection. Secondly, it is argued that the provisions of economic democratization and the constitutional duty to use the right to property in harmony with the general welfare will require the state to institutionalize social equality through enhancing participation of a variety of subjects in the economic field. In particular, it is made clear that the principle of subsidiarity declared as a constitutional doctrine by the Constitutional Court of Korea cannot be applied to those cases in which basic social needs are to be met by the state, such as child support, education, transportation, social infrastructure, and social security benefits. Thirdly, the need for the incorporation of international human rights into domestic legal order is emphasized in order that legislative and administrative discretions in deciding the scope and extent of social rights may be subject to the international guidelines. In conclusion, the paper suggests a hypothesis that the discrepancy between constitutional norms and reality has become maximized not only because of legislative and administrative powers but also because judicial powers, including constitutional adjudication, have failed to effectively respond to the constitutional call toward full-fledged fulfillment of social equality.