평등을 통한 사회적 기본권 실현에 대한 우려

Abstract

Introducing a new basic right means that the benefits that could have not been guaranteed by the existing basic rights can now be guaranteed by the new basic right. With regard to the legal characteristics of social basic rights, the common theory and judical precedents view them as abstract rights. This means that a specific benefit may not be required based on social rights, and that the benefits are guaranteed at a level that is referred to as ‘abstract.’ However, a precedent, in fact, converts social basic rights into specific basic rights by declaring in a case that a state in which a specific benefit is not provided to a claimant violates the claimant’s right of equality. This practice may be criticized. The practice allows what may not be accomplished by social basic rights, the ‘new’ basic rights,’ to be accomplished by the right of equality, which is a traditional basic right. If that is possible, it is wrong to say that social basic rights have been ‘newly introduced.’ A benefit that is not recognized by the interpretation of social basic rights should not be recognized by means of equality. Equality must not be used as a universal key that can solve any problems. If a judge can derive any conclusions by means of equality, equality becomes infinitely meaningless. As much as equality becomes meaningless, the authority of judges is increased. Equality simply becomes a tool for justifying the conclusions made by judges. Equality should be interpreted as having its unique meaning. Equality simply prohibits a ‘different treatment’ based on the elements prohibited by the interpretation of the constitution.