社會的 基本權의 법적 성격에 관한 反芻

• 영문명: The Social Rights - Commentary on its Constitutional Formulation and Judicial Review -
• 발행기관: 조선대학교 법학연구원
• 저자명: 김기영(Kim, Ki-Yong)
• 간행물 정보: 『법학논총』제15권 제1호, 143~165쪽, 전체 23쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2008.03.30

영문 초록

As the political framework had changed over the 20th century, we witnessed the consitutional mandate transform correspondingly. The orignal form of constitution, as were uniquely originated from the US, just dictated a limited set of liberty interests of citizens, while largely embracing an American vision of federal states. To say, the constitution, in terms of its intrinsical role related with a political unity, is fairly simple as well as focuses on the establishment or distribution of the constitutional powers, which also ensures the legitimacy and democratic rule of the government on the constitutional ground. This means the first emphasis is given to the constitution of government as literally given while the human rights are just subsidiary or rebounding by limiting the governmental powers to the constitutional language. Whereas little provisions on the due process of law, right to a jury trial and so, matter with the human rights in the US constitution setting aside the subsequent amendments, the human rights scheme was placed most importantly as a key framework in the European constitutional states. The right-based constitutional approach, as inviolable and endowed in nature, heavily influenced the later-born conetitutions that evolved upon the international constitutionalism. Such approach could blur the traditional concept of common law rights, a gradual increase of socialistic welfarism, the political nature of the constitutions from philosophical dicta and so on. A sharp emphasis of public rights through the ground law of nations, at last, left a plethora of legal issues debated, but unresolved, which range, for some instances, over the conflict of national and international laws, the enforcement dilemma of social rights, and the democratic deficit of international constitutionalism. The social rights, incorporated by many states into their constitutional documents have long been open to a scholarly debate surrounding its justiciability, judicial possibility of its enforcement, and separation of powers. Normally, it is perceived that the social rights could neither concrete nor enforcible lacking a definitive scope or contents. The judiciary may regard it as mere prescriptive unless the legislative authority takes a step to enact or delineanate them into any enforceable laws. The social rights, as frequently dealt with in the international dimension, are much worse given the less political accountability or budgetary constraints. Not the least though, we could have identified a rising judicial activism that stressed their critical implications linked to the fundamental right of first generation. Sen, a nobel economist, enlightened that one's liberty could not be perfect under the discriminated social condition, and the German court delimited the constitutional liberties in ways of incorporating the prescription of social rights into viable commandments. Mark Tushnet, an American consitutional jurist, also suggested a weak-form judicial review that could improve the judicial setback relying on the traditional notion of separation of powers.

목차

I. 序言

II. 憲法上 基本權과 社會的 基本權

III. 사회적 기본권에 대한 基本視角

IV. 사회적 기본권에 관한 몇가지 轉向的 觀點 들

V. 結論

키워드

사회적 기본권 미국헌법 유럽사회헌정 약한 형태의 사법심사 적극적/소극적 기본구조 the social rights US Constitution EU Charter of the Fundamental Social rights meak-form judicial review positive/negative right