사회변화와 사회적 기본권

Abstract

From the first constitution in 1948, at least normatively, our Constitution not only guaranteed freedom, but also clearly declared that individual social circumstances should be considered and socioeconomic integration should be realized, and this was embodied through various social basic rights regulations. However, despite these normative circumstances, social basic rights did not have constitutional authority until the late 1980s. Constitutional reality and the unique realization structure of social basic rights worked here.
 Since the establishment of the Constitutional Court under the Constitution in 1987, the constitutional tasks of the welfare state have been discussed in earnest, laying the foundation for social basic rights to become a constitutional reality. Social basic rights are normatively open norms in their content, goals, and methods of realization, but their realization tends to be subordinated to external decisions about realistic situations. Social basic rights can be activated under a democracy where the possibility of dynamic and pluralistic decision-making is open, but on the other hand, it is also a factor that can deepen its instability. Among these tensions is the Constitutional Court. Although the Constitutional Court has contributed to the recognition and functioning of the Constitution as a norm with universal effect since 1987, it is inevitable to be critical of how much the Constitution and Constitutional Court have contributed to social integration, guaranteeing conditions for freedom and opportunities for social participation to all citizens. Until now, due to normative or practical obstacles, the Constitutional Court has repeated most of its passive judgments in judicial review of social basic rights. However, at a time when the scope of the constitutional task for the welfare state extends beyond welfare measures for marginalized human groups to the issue of intergenerational equity for sustainability, the constitutional trial can no longer settle for passive judgment.
 In order for constitutional values to play an important driving role in forming a social security legislative system for the realization of social basic rights in the future, the Constitutional Court should define the normative meaning of social basic rights and seek active guarantees for social basic rights.