사회보장에 관한 헌법재판소 판례의 분석과 평가

Abstract

This year is 20th anniversary of foundation of Constitutional Court. This study designed to analyse and evaluate Constitutional Court's precedent case on social security for bygone 20 years. The right to live on constitutional law is materialized by social security law. So social security law study in a view of Constitutional law is very important. Constitutional Court's precedent case study on social security, makes to interpret & applicate social security law in Constitutional law, and so Constitutional Court's precedent case study on social security, is the opening gate of study of social security law. Early many precedent case on social security is rejected because of suit period passing, but recently rejected case is rare and contents and quality of decision is more and more better and riper than former days. The number of Constitutional Court's precedent case of social security is very few, that is caused by structured problems of the right to live and social security law. This structured problems are abstraction of "the right to live" in the step of constitutional basic human rights, legislation discretion in the step of formation of law, administration discretion in the step of execution of law, denial of public service action or performance of duty action in the step of judicial dispute. These are legal barriers of social security individually and systematically. The task of this study is to plot legal principal of administrative law in order to overcome these legal barriers. In this study, I intend to present several suggestions to solve this problems. First of all, to overcome "abstraction of the right to live", we should comprehend the right to live in the structural principle of social state constitutional law, the right to live and the right of freedom should not be evaluated together on the same plane. And the principle of that social security law create and realize right to live is very useful too. So to speak, the theory of "The formation of general principal of constitutional law by administrative law" is applied to this. Secondly, in social security law, legislation discretion is admitted but, this should be allowed "narrowly" as much as possible in constitutional court. Thirdly, about the control of administrative discretion, two methods of control are suggested. One is a method of discretion control through basic right. So called, if decision by discretion is connected with basic right it should be judged. The other is a method of discretion control through discretion character that is policy discretion and specialized technical discretion of social security administrative agency. In policy judgment, discretion decision is limited estimation of supply standard and amount in supply procedure. Finally, constitutional precedent case will be served momentum for legislation and policy making on social security. Hereafter, the study about how constitutional judgment affect legislation and policy making on social security, will be interesting theme of law and policy study.