사회적 기본권의 구체적 권리성 여부

Abstract

Social constitutional rights are rights of the individual against the state to something which the individual could obtain from other private individuals, if only he had sufficient financial means, and if only there were sufficient offers on the market. For example, that is, rights such as rights to welfare, work, accommodation, education, and environment. 'Social constitutional rights' could be norms granting subjective rights or they could be merely objective norms binding the state. Obviously, Liberties are subjective rights and also objective rights. But social constitutional rights are only objective norms. The state is bound by these objective norms, and the state should prepare for the realization of social constitutional rights. But beside liberties, the Constitutional Court can't command legislature to enforce specific action based on objective norms. All constitutional rights are the fundamental as a result of their location at the top of the hierarchy of the legal system as law directly binding on the legislature, executive, and judiciary. And so do social constitutional rights. But social constitutional rights has the special nature. If the Costitutional Court command legislature to enact specific laws, it would transfer social politics from the competence of legislature to the constitutional court. That is to say, it would encroach on the separation of powers. There are various methods of ensuring the social constitutional rights. The constitutional court can not settle the social constitutional rights problems perfectly. But we shouldn't say that there are no costitutional significances.