헌법상 근로의 의무에 대한 고찰

Abstract

The Korean Constitution defines the title of Chapter Ⅱ as Rights and Duties of Citizens and stipulates various provisions on the basic rights as well as the duties of the people. However, there is a considerable lack of interest in public duties compared to basic rights. In particular, in academia, considerable complexity is present in the viewpoint of the legal nature and effect of the duty to work of all the people prescribed in Article 32 (2) of the Korean Constitution. This paper examines the concept and type of basic duties, the constitutional significance of work, the constitutional provisions on work, as well as the somewhat confusing academic disputes concerning the legal nature of work obligations and then evaluates it with a rational interpretation plan. The most basic difference in the legal nature of the duty to work depends on whether it is understood as a legal obligation or just a moral obligation. However, the opinion that the duty to work is a legal obligation is divided into two parts: the view that it is possible to force direct work by law, and the view that it can not be obliged to do forced labor. The latter is again divided according to the extent to which it can impose indirect penalties to fulfill the duty to work. In other words, it is divided into the view that it can impose a disadvantage only to the extent related to the obligation to promote employment of the state, and the opinion that it can impose a general disadvantage on the right to social security. Basically, it is desirable to remove duty to work from the Constitution, but in the interpretation it is appropriate to reduce the meaning as much as possible. First, what is explicitly defined as an "duty" in the Constitution can not be regarded as merely an ethical declaration. Therefore, it should be recognized that the duty to work has legal effect. Also, it is necessary to interpret the scope and content of the effect as narrowly as possible. So, it is not appropriate that the duty to work of the Constitution should allow the state to force the people to work or be used as a constitutional basis for denying the right to social security as a whole. As a result, it is desirable to recognize the legal effect of the duty to work in a range that is directly related to the right to work and the obligation of the state to promote employment. The duty to work means the obligation of the people to respond to the efforts of the state to guarantee the right to work, and it is possible that the people who do not fulfill this obligation may not be covered by the social security system directly related to the obligation to promote employment.