국제인권규범을 통한 사회적 기본권의 구체화 가능성 검토

Abstract

The most reasonable interpretation of the Constitution which social rights are directly defined in it is to accept such a right as a subjective right. However, there remains the further question as to whether social rights have their own scope and to what they are and to what extent they need to protect constitutionally. These are the questions related to how to interpret the constitutional provisions to entrench social rights in the constitutional law. Many theories try to solve these problem. Some theories assert that social rights have just the objective value like the constitutional principles or that they have the character as weak subjective rights. But it is not accepted because the constitutional law explicitly has provisions related to social rights. Social rights must be understood as subjective rights like freedom or liberties and the state has to owe the positive obligation to protect the rights when the constitutional law stipulates social rights provision. The constitutional court does not review cases related to social rights positively. It claims that it is difficult to materialize social rights and the legislator has to solve the difficulty because the constitutional law authorize legislator to materialize social rights. These claims are very plausible. Actually democratic legitimacy of legislator is stronger than the constitutional court. But the constitutional law authorize the constitutional court to protect people by interpreting the constitutional law at the trial. So the constitutional court has to try to seek reliable criteria. International human rights norms can suggest direction for the court. Especially the minimum core of economic, social and cultural rights or the minimum core obligation of the state help the court suggesting effective criteria.