Abstract
Social fundamental rights can be called ‘factual claims’ of the nationality of individuals, which means rights that require active action by the state for the realization of rights. On the other hand, the ‘normative benefit right’ is the right of the state to demand the enactment of certain laws and regulations. Specifically, the factor to be considered in the analysis of the social rights aspect of the right to health is the ‘publicness of healthcare service’. In order for the right to health to function effectively as a social fundamental right, it must reflect the nature of medical care that is most necessary to maintain the right to health. In the end, the right to health is related to all members of the society and has a ‘normality of publicness’ in the sense that it cannot exclude the benefits of some members. The health care sector, which may cause market failure due to what is termed the asymmetry of information, must be strictly observed in consideration of the essential value of health.
Highlights
Social fundamental rights can be called ‘factual claims’ of the nationality of individuals, which means rights that require active action by the state for the realization of rights
The ‘normative benefit right’ is the right of the state to demand the enactment of certain laws and regulations
In order for the right to health to function effectively as a social fundamental right, it must reflect the nature of medical care that is most necessary to maintain the right to health
Summary
Social fundamental rights can be called ‘factual claims’ of the nationality of individuals, which means rights that require active action by the state for the realization of rights. When we understand the right to health in relation to Article 36 (3) of the Constitution, the right to health indicates an obligation of the state to protect health but it has the characteristic of an objective value order as well as a subjective right.
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