社會保障受給權의 財産權的 性格에 관한 憲法的 判斷

Abstract

It is a question whether the right to social security belongs to the protection of property rights in the Constitution. There are various types of pension claims, and it is difficult to uniquely judge their legal nature. The Constitutional Court of Korea believes that the pension entitlement has both the nature of social security benefits rights and the property rights. The Constitutional Court of Korea is demanding that the social security benefits rights have a considerable “own contribution” and “survival” in addition to “private usefulness” in order to receive protection of property rights in the Constitution. However, as social insurance or social security develops today, the strict requirements of “own contribution” and “survival” are not appropriate. Not only is the requirement of “survival” is not consistent with the situation of the times, but it may not be appropriate to require strict self-payment. Such is the right to receive social security, for example, for dependents, as well as for children who are not supported by parent because of their divorce. In determining the property rights of social security entitlements, these strict requirements of the case law should be amended. This theory was influenced by the case law of the Federal Constitutional Court of Germany, but it does not fit today’s situation or circumstances. In the case law, 'private utility' and 'disposal right' are proposed as core concepts of property rights protected by the Constitution. However, the notion of property rights protected by the Constitution includes not only private rights but also public rights. Flexibility is often limited in these public rights. It is not desirable to grasp the property rights of social security entitlement as a theory limited to private rights. The requirements for judging the property rights of social security entitlements in the future should be reconsidered, and the concept of property rights needs to be modified in view of the characteristics of public rights.