국민기초생활 보장법 부양의무자 기준의 위헌성

The National Basic Living Security Act, which establishes the last-resort social assistance program for people living in poverty in the Republic of Korea, sets two eligibility criteria: one is that the assessed amount of income should be less than the minimum cost of living; and the other is that there should be no family members who are legally responsible, and are capable or otherwise able, to support the applicant. Among the two criteria, the latter, called family responsibility criterion, generates heated controversy. The family responsibility criterion has been heavily criticized because it leaves many people in poverty outside the coverage of the social assistance, driving some people to commit suicide. While most debates on the family responsibility criterion have focused on the issue of distributing responsibility between family and the state, this article draws attention to the assumption under the family responsibility criterion that the responsible family members’ ‘potential ability to support,’ measured independently from the actual support, is a proper indicator to assess the means at the disposal of the applicant. This article contends that the assumption is unfounded because the legal right to claim support from family under the Civil Act, upon which the family responsibility criterion is premised, is a right that only can be materialized through a time and money consuming lawsuit, which in most cases is an unrealistic and unfavorable option for people living in poverty. Further, the family responsibility criterion, by employing the unfounded assumption, burdens and disadvantages the applicant, i.e. right-holder, when the fault is in fact at the failure of the family, i.e. duty-holder, in carrying out their responsibility to support the applicant. As a result, the family responsibility criterion creates a legal vacuum where neither the state nor the family supports for the applicant’s survival and decent living. Such legal vacuum is unacceptable under the Korean Constitution, which guarantees the minimum standard of living for all as a right to ‘a life worthy of human beings.’ The family responsibility criterion and its relevant regulations may also violate the applicant’ rights to equality and privacy, as well as family members’ property right in certain cases. Thus, this article concludes that the family responsibility criterion should be removed from the eligibility requirement. This article then discusses some issues and alternatives that people may raise upon the removal of the criterion, including the concern on budget and moral hazard.