장애인의 탈시설권리

Abstract

This paper’s object is to prove that the right to deinstitutionalization of persons with disabilities can be valid as a specific right under our present legal system. Though there exist no laws and regulations that stipulate the right to deinstitutionalization of persons with disabilities, it can be ascertained as one of the fundamental human rights protected by the constitution, such as based human dignity and value, the right of freedom, the right of equality and the basic social right. The social Welfare Work Law or the Welfare of Disabled Persons Act define the welfare service for the disabled as one of ‘the discretionary payments’ and especially put the service of supporting independence under a financial reserve. However, the right to deinstitutionalization of persons with disabilities can be valid as a specific and subjective public right in the light of the necessity and urgency of the right, and by teleological interpretation of the laws and regulations related with the welfare service of the persons with disabilities, and the Anti-Discrimination against and Remedies for Persons with Disabilities Act(the ADRPDA). The right to deinstitutionalization of persons with disabilities can allegedly be limited because of the lack of national finance. But in such a case the relevance of each individual’s desire of ‘deinstitutionalization’, instead of the Olmstead test by the US Supreme Court, should be a standard of judgment. The relevance of desire can be judged according to whether unreasonably high costs are caused compared for the effective ‘deinstitutionalization’. The vision of human beings described in the constitution in relation to the welfare policy of the persons with disabilities demands the policy of ‘deinstitutionalization.’