사회보장법의 권리론적 해석체계 정립방안

Abstract

What was different about the recent presidential election was that, unlike the previous ones, there were a lot of promises made regarding the improvement of social welfare system. In modern-day welfare states, Social Law, such as labor law and social security law, are said to have as much powerful effect on people’s leaving as civil law and commercial law, the representative categories of Civil Law. However,the idea of securing people’s social rights has not been utilized by the nations until the end of World War II and does not have an organized standard or ‘system’ of its application. Besides, the political,economic and academic differences among the nations who put the vague idea into law, along with its distinct history of legislation in each country, have made it all the more difficult for most of the people to be fully aware of what the idea really was. In Korea the situation is even worse. As the proper interpretive system has not been firmly established, the legal coverage provided by the social security law stand far below average. The quality and the number of research findings on social security law also fall too short. As we are still stagnant at the first stage of effective legislation of social security system, our nation is in desperate need of a system that could help us come up with better legal mechanism. The biggest problem is that we are still at the state where we tend to not look at social security law as the collective idea of securing the rights of every man, but as individual provisions that have no relation to one another. The legal interpretation on social security law so far has been made from the perspective of ① current law and ② administrative law, ③ based on the benefits of those who called for the law to protect his/her own rights. Korea is developing into a decent welfare state. The government has set aside more than 10 trillion won for welfare from the 2013’s overall budget(342 trillion won). Upon entering the era like this, it is essential that we get out of the old-fashioned way of accepting social rights of the people, and establish firm foundation of social security. Finding out how a citizen’s right of claim for social security holds its legitimacy would be a start. Article 34, section 1 of the constitution stipulates the right for every citizen to live worthy as a human being, and section 2 specifies the duty of the government to secure its citizen’s social security and improve social welfare. Strictly speaking, although we were able to infer the idea of social security out of the existing legal statements, there were no specific article or clause that made it official. Thus, it is required that some constitutional reform be made to lend sufficient weight to the legal effect of social security rights. What might emerge as the following task is specifying the details that constitute the social security rights. The details will cover guaranteeing ① the right to claim for compensation in case of social risk,② the right to live with at least basic living in lacks of earning ability, ③ the right to claim speciallegal/financial protection and others.