사회적 기본권에 관한 헌법재판소의 심사기준

Abstract

The Korean Constitution guarantees a variety of individual social rights. However, the Constitutional Court of Korea has made reluctant response to matters related to social rights in the meantime by dismissing cases with respect to legislation that are likely to infringe the social rights and by taking the attitude that denies giving social rights the nature of constitutional rights. Examining the unconstitutionality of cases relating to social rights, the Constitutional Court has applied the criterion, the ‘act-norm/control-norm dichotomy’ since the early days. Accordingly, the Constitutional Court can only review whether the legislation embodying social rights does not exist at all, or whether the legislation exists, but deviates from the scope of the discretion enough significantly to contain apparently absurd things. To embody social rights is up to the legislator. However, the legislator is not able to determine whether social rights survive, because social rights are still the constitutional rights. As the principle to set up a constitutional limit of the limitation of fundamental rights, there is the principle of proportionality. Depending on whether legal interest protected by fundamental rights negative is negative act or positive act, this principle of proportionality is embodied in the principle of Übermaßverbot and the principle of Untermaßverbot. Likewise the principle of Übermaßverbot, the principle of Untemaßverbot can also be divided into detailed sub-principles, the legitimacy of aims to restrict Leistungsrechts, the adequacy of means (omission) for achieving those aims, the minimization of damages caused by this omission and the balancing of Leistungsrechte and the purpose restricting these rights. In cases relating to such Leistungsrechte as social rights, the principle of Untermaßverbot is to be applied as a criterion of the scrutiny according to the nature of issued fundamental rights, but the intensity of the scrutiny can be adjusted depending on the nature of the issue.