사회권의 법적 성격

Abstract

This thesis aims to review legal enforcement of social rights as one of human rights in the Republic of Korea. It analnyze and counters some of widely spreaded objections to the justiciablity of social rights with well-developed thories of international human rights in sphere of United Nations Economic, Social, Cultural Rights. Some scholars and precedents of the Constitutional Court in Korea have insisted that social rights are different from civil and political rights in some aspects. Social rights are not so certain and clear to employ legal enforcements. Another argument against social rights is that fiscal considerations will always prevent their enjoyment from becoming a reality for all persons entitled to them. Finally social rights have procedual difficulties and limitations to be enforced by the judiciary and are better to be decided by the political branches in Korea. However, the question of vagueness or uncertainty of a right is not a problem exclusively related to social rights. The determination of the content of every right, regardless of whether it is classified as civil, political or social. This is because many legal rights have characteristics of relativity, abstractness and changeability. Many of the obligations associated with social rights do not actually require large budget. State duties to ensure the full realization of social rights and of all other human rights cover the full spectrum of obligations—from measures that are essentially cost-free to those clearly requiring significant public expenditure. In Korea social rights are clearly and undoubtedly declared by the written Constitution, so these should not be recognized as mere program or goal of the State but the real legal rights to be enforced by general courts and the Constitutional Court. Article 34 of the Constitution provides that all citizens shall be entitled to a life worthy of human beings, and Article 119 declares that the State may regulate and coordinate economic affairs in order to maintain the balanced growth and stability of the national economy, to ensure proper distribution of income, to prevent the domination of the market and the abuse of economic power and to democratize the economy through harmony among the economic agents. As pointed out by many human rights scholars, there are three general obligations within the legal framework of social rights: the obligations to respect, to protect and to fulfil these rights. However, concept of these obligations have not been introduced well to Korea yet. Liberal aspects of social rights are discussed by some scholars, but the obligations to porotect social rights and to fulfil them are not admitted sufficiently by either law professors or courts including the Constitutional Court. If we agree social rights should be justiciable, these three obligations of the State also shoud be admitted. Article 37 of the Constitution provides that “the freedoms and rights of citizens may be restricted by Act only when necessary for national security, the maintenance of law and order or for public welfare. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated.” The idea of core content (also called minimum core content, minimum core obligations, minimum threshold or ‘essential content’, as it is known in the German constitutional tradition and the traditions which flow from it) of fundamental rights is clearely accepted by the written Constitution. Though this concept entails a definition of the absolute minimum needed, without which the right would be unrecognizable or meaningless, most scholars insists very strongly it in areas of civil and political rights. Unfortunately many professors neglect to explain the same applied to social rights. Minimum core content shall not be violated even when restrictions on social rights are necessary. A “retrogressive measure” is one that, directly or indirectly, leads to backward steps being taken with respect to the rights already historically recognized by the State. Many human rights sholars admit that retrogressive measures also be prohibited in the area of social rights. In Korea it has not been recognized well, and Korean government is often suspected to violate this principle. If social rights are considered as real legal rights of people and obligations of the State, this should be improved. The issue of social rights are not an issue of welfare, but of human rights. In Korea the matter of social rights should not be considered as a question of policy but legal rights.