소위 수익적 법률에서 위임입법의 헌법적 한계- 특수임무수행자보상에 관한 법률 제2조 및 동법 시행령 제2조를 중심으로 -

In modern society, the transformation of function of government - from traditional passive to constructive and affirmative - has greatly increased instances of administrative rule-making, and it has been observed the aggravated dependence of individuals on governmental benefits and subsidies as well. Accordingly, the necessity to control blanket delegation of legislative power to administrative branch and arbitrary administrative regulation has been more and more emphasized. Nevertheless, the Constitutional Court and Supreme Court of Korea have applied moderate standard of review in the area of social welfare administration. Eventually, it is the judiciary that reviews and decides the constitutionality and legality of delegation of legislative power and administrative rule-making thereof and one cannot say too much that the role of the constitutional court and general court is critical to protect and guarantee rights and freedoms of individuals in the area of legislative delegation. Social welfare program of state has become very crucial as it forms the precondition of individual rights and equal freedom, and thus in social welfare state, it is not really meaningful to strictly distinguish intrusive and infringing administration from subsidizing and benefiting administration with respect to statutory reservation, prohibition of blanket delegation and equal protection principle. Though the court should consider the exceptional conditions regarding state functionalism and legal technicalities, it should review social welfare administration strictly as it does with intrusive administration. Furthermore, regardless of whether it is about constitutional social rights or statutory rights for social welfare benefits, it is the very fundamental principle of Constitution that protects individuals from arbitrary discrimination by government.