사회보장행정에서 권리의 체계와 그 구제

Abstract

Korean Constitution adopts the principle of welfare State. Article 34(1) of the Constitution purports to guarantee the right to lead a life worthy of human dignity. Constitutional Court has ruled that legislation which stipulates eligibilities and the level of benefit in such a manner as to infringe the right to lead a life worthy of human dignity is unconstitutional. The ruling, however, is problematic because the threshold for the minimum protection is presented as 'the right to have the minimum level of material amenities' rather than 'the right to have the minimum level of healthy and civilised life'. Article 9 of Social Welfare Basic Act, on the other hand, provides for a right to receive welfare benefit as a statutory entitlement. Grant of benefits under the welfare administration is not made ex officio but in response to an application of an eligible person which will be determined by an administrative body. The decision is made on two points, which are (1) the confirmation or determination of eligibility for the benefit; and (2) the choice of actual benefit to be granted. Remedies in welfare administration must be determined in an expeditious manner, through a simple procedure, with minimum costs and by a tribunal which has the professional expertise. In order to meet these requirements, this paper proposes that administrative appeals regarding benefit related decisions be made by a professional tribunal set up for the purpose and that the procedure must be streamlined. The focus of administrative lawsuits should move away from applications to set aside decisions of the administrative bodies. Party-driven litigations should be preferred instead. More creative application of the principle of partial nullification is desirable as well. However, the ultimate solution would be to reform the Administrative Litigation Act and to introduce a lawsuit to compel performance of an administrative duty.