국가유공자에 대한 보상·지원의 헌법적 근거에 관한 검토

Abstract

Based on the two theoretical grounds proposed by the decision of the Constitutional Court, which are comprehensive obligations to honorably treat persons of distinguished services to the state and social security obligations under the Article 34 Section 1&2 of the Constitution, this study reviews whether the compensation and support for persons of distinguished services to the state, persons on special duties, and persons who participated in the May 18 Democratization Movement, which are provided as prescribed by positive laws, are the Constitutional obligations or not. The result of the review is summarized as below. It is reasonable to understand that the state's obligations to support and compensate for persons of distinguished services to the state come from the historical and ideological foundation of the Preamble to the Constitution and the Article 34 Section 1&2 of the Constitution. The obligations to support and compensate emanating from the historical and ideological foundation of the Preamble to the Constitution are so comprehensive that it is inevitable to leave decisions of how and how much each benefit should be distributed to legislators' broad discretion. The positive view on the Constitutional obligations has significances in the following two aspects. First, it can secure a substantive basis on which legislators' discretion in establishing legal grounds for compensation and support not embraced by the social security obligations under the Article 34 Section 1&2 of the Constitution can be controlled. Second, it can form strong grounds that enable the compensation and support for persons of distinguished services to the state who suffered from the injury to their physical integrity or lost opportunity costs to be interpreted as falling under the scope of the social security obligations prescribed by the Article 34 Section 1&2 of the Constitution. It is because the state is held more accountable for social security obligations if the obligations are imputed to the state based on the historical and ideological foundation of the Preamble to the Constitution and the principle of law-governed state, on the other hand, legislators may have a broad discretion in deciding whether to impute social compensation responsibilities for persons of distinguished services to the state who suffered from the injury to their physical integrity or lost opportunity costs to the state merely on the basis of the principle of social state. Especially, it can be used as a powerful argumentation by which compensation and support for persons of distinguished services to the state whose sacrifices are difficult to be concretely defined can be brought within the purview of social compensation responsibilities under the Article 34 Section 1&2 of the Constitution.