‘Rights investing’ in Korea: focusing on the overturned decisions of the Constitutional Court

Abstract

ABSTRACT This article examines the development of human rights discourse in Korea by focusing on some overturned cases by the Constitutional Court of Korea that declares new types of rights and offers new interpretations on existing human rights. While creating new human rights through court decisions have been criticised by those concerned about ‘rights inflation’ for devaluing the currency of human rights, this article argues that it is a natural process evolved along various aspects of a constantly changing society and increasing social demands. Moreover, the author argues that it is a desirable process in a democratic society because it enables us to empower many citizens, including the previously marginalised, to seek a less discriminatory society by distributing authority to speak out about unfairness and injustice. Introducing some empirical cases where the judicial decision considered constant changes in social situation and reflected on them in overturning precedents, the author stresses the need to look at the background and social circumstances wherein new rights emerged from a social and cultural perspective of law to better understand the human rights discourse, as well as elevate the level of human rights protection.