공법소송에서 공공부조수급권의 보장 - 비례의 원칙을 중심으로 -

Our Constitution Article 34(1) of the Constitution define to guarantee the right to lead a life worthy of human dignity. The right to social security is included in the contents of the right to lead a life worthy of human dignity. Public assistance rights may be referred to the social security right in areas of social assistance in the National Basic Livelihood Security Act. Meanwhile the principle of proportionality in the constitutional trial for the review of constitutionality, can be concretized by the principle of over-limitation-prohibition and the principle of under-protection-prohibition according to functions of constitutional rights, according as they are rights to omission or rights to action or benefit. The Constitutional Court has ruled that legislation which stipulates eligibilities and the level of benefit in such a manner as to infringe the right to lead a life worthy of human dignity is unconstitutional. However, actually the Constitutional Court does not correctly apply the principle of under-protection-prohibition in the National Basic Livelihood Security Act cases. But the experience of the guarantee of social security rights or welfare rights in the United State of America Supreme Court and the South African The Constitutional Court gives suggestions to the direction of enforcing social rights in the current Korean laws. Also the principle of proportionality in the administrative trial for the review of legality, can be concretized by the principle of over- limitation-prohibition and the principle of under-protection-prohibition to guarantee the national basic livelihood security right. So the principle of under-protection-prohibition is used to prevent deviation or abuse of discretion when the administrative agency determined to non-entitlement disposition of basic livelihood.