The Role of the Court in Protecting Social Basic Rights in Korea
- Focusing on the Right to Humane Livelihood –
Bokgi Kim (Professor, Seoul National University)
The Constitution of Korea guarantees social basic rights, such as the right to humane livelihood, the right to education, and the right to work.
The justiciability of those rights has traditionally been questioned mainly for enforceability of the related provisions. Considering the historical background and the purpose of guaranteeing social basic rights in the Constitution, the type of provisions, and the introduction and operation of constitutional complaints, social basic rights are subject to judicial enforcement.
The old debate over the legal nature of social basic rights should be transformed into a discussion over what the constitutional provisions of social basic rights specifically entails, or what type of scrutiny is appropriate for judicial review in the area of social basic rights. This would be more meaningful and fruitful for the substantial protection of social basic rights.
It is the duty of the court to clarify the meaning of the constitutional provisions, and especially it’s up to the constitutional court to set the level of scrutiny for judicial review.
The right to humane livelihood is the most important and fundamental right in that it provides basic social protection to all members of society. Through reviewing some cases on the court, I’ll examine what constitutes the constitutional provision of "humane livelihood", and what kind of scrutiny is appropriate for judicial review concerning the right to social security or social welfare.