사회권의 성격과 사법구제 가능성 －헌법재판에서의 사법구제 가능성을 중심으로－

Abstract

The economic, social and cultural rights(hereinafter “ESCR”) have been treated differently with the civil and political rights(hereinafter “CPR”) in terms of the nature of rights, in both domestic and international law. Despite the prescription of rights on the international covenant on the ESCR, the notion of treating these rights differently has been persistent due to the misunderstanding of the nature of the ESCR. In this paper I define the legal nature of the ESCR and discuss the justiciability thereof. In regard to the nature of the ESCR, the traditional dichotomy between the ESCR and the CPR, which treats the CPR as an immediate implementation and the ESCR as a progressive realization, should be overcome. States can discharge the obligation to respect and the obligation to protect immediately in accordance with the ESCR. In addition, not all the obligations of the CPR can be implemented immediately. In other words, the obligation to fulfill or promote entails resources and time. Therefore, the obligation to fulfill or promote will be progressively realized. Furthermore, a set of ESCR provisions, such as the non-discrimination between men and women in working conditions and compulsory primary education are considered to be immediately implemented. Thus, it is critical and realistic to discern obligations of immediate implementation and progressive realization in order to protect and promote the ESCR. It is necessary to avoid the dogma that the ESCR are not justiciable. There can be cases where the ESCR are subject to judicial review. Executive orders, regulations, actions and commission and ommission of the legislative branch are subject to judicial review as well by constitutional complaints. This is illustrated by the jurisprudence of the South African Constitutional Court’s decisions and other cases. In this perspective, the judgements of the Korean Constitutional Court regarding the ESCR, with the Court’s reasoning based on the obsolete dichotomy between the CPR and the ESCR, are far behind the international human rights standards. Thus, it is crucial to promptly recognize the nature of the ESCR.