사회적 평등과 헌법 - 일본국헌법의 관점에서 -

Abstract

This essay, under the Symposium theme “Social Equality: Comparative Analysis of the Idea and Realization”, explores social equality issues from the Japanese constitutional theories and practices. First, the current situation on social inequality in Japan is examined (I). Then, we overview how the provisions of the Constitution of Japan tackle social equality issues and the cases of Supreme Court of Japan as well as commentators have developed doctrines on social equality (Ⅱ). Finally, this essay looks into the recent development of constitutional implementation on social equality (Ⅲ). I． The remarkable issue of the current social and economic situation in Japan is social inequality which the economic downturn, the rapid declining of birthrate and the extreme ageing has brought about. First, the economic recession has led to serious poverty problems. Second, the declining birthrate has reduced Japan’s workforce population and provoked the necessities of broad social participation. Finally, these factors raise the intergenerational equality question on social services and duties between young and old. Ⅱ． How can we manage these issues through the perspective of the Constitution? The Constitution, which holds the principle of respect for each individual and equality, has social rights provisions, such as welfare rights or rights of working people. According to some of the constitutional scholars in Japan, the constitutional protection of individual rights could be considered on the value of individual autonomy, and that leads us to understand social rights as the protection and recognition of an individual autonomous life by the government. While Supreme Court of Japan has broadly deferred to discretions of the political branch on social rights, this essay tries to show that in order to protect an individual autonomous life in society, a more robust judicial review on constitutionality of social welfare legislation should be justified, through the idea of constitutional implementation of social rights as the “collaboration” or the “partnership” between the judiciary and the political branch. Ⅲ.　This point of view could give us some clues to consider recent social equality issues mentioned above as a constitutional matter. First, on serious poverty problems, the judiciary should, as a constitutional protector of minimum welfare rights, play a more active role in reviewing administrative discretions under the public assistance law. In addition to that, this essay also implies that the idea of “social inclusion” can be effective way to analyze poverty law problems. Second, on social participation, it is noteworthy that recent inferior court decisions as well as legislations show the possibilities of the “collaboration” or the “partnership” between the judiciary and the political branch on the social engagement of women and people with disabilities. Finally, on the intergenerational question, this essay suggests that the legislature, in considering social security system, has a constitutional duty to take an each people’s individual autonomous life seriously for future, and the judiciary must examine carefully social security legislations for long-term period, such as public pension systems, in order not to allow excessive legislative flexibility.