위헌심사를 통한 사회적 기본권의 실현 방안

Abstract

This article examines ways to strengthen and to extend the realization of social rights through judicial review.
 First, it can be considered to strengthen the realization of social rights by heightening the standard of review according to types and degrees of the legal interests at issue in individual cases. It is the same way that the Constitutional Court recently showed in the application of the principle of prohibition of under-protectiveness, which is a review standard for violation of the duty for state to protect constitutional rights.
 Secondly, the realization of social rights can be expanded through judicial review with the right to equality(the principle of equality). Although the Constitutional Court cannot force the implementation of a specific policy for social welfare of people, it may require the State to expand the scope of beneficiaries of the social welfare on the ground of the right to equality(the principle of equality) once the State adopted the specific policy.
 Thirdly, the decision of non-conformity serves as an appropriate and useful form of decision in the judicial review with social rights. With declaring that the current State’s action does not meet the level required by the Constitution and leaving specific methods for improving the situation to the National Assembly, the Constitutional Court can avoid questions about the legitimacy of judicial review raised from the principles of democracy or separation of powers, and the criticisms of the Court’s lack of ability to make proper judgments about the State's financial capacity or policy priorities.
 In addition, the principle of legal stability serves to guarantee at least the current level of benefits by preventing from reduction or abolition without justifiable reasons, and the principle of Parliamentary Reservation strengthens the realization of social rights indirectly through heightening the standards of review regarding formal and procedural requirements of legislation.