헌법원리의 관점에서 바라본 헌법과 사회보장법의 상호관계

The social security law is based on the legitimacy of Constitution as the system of the fundamental principles, above all, the principle of welfare state. The constitutional study regards the principle of democracy, the principle of law-governed country and the principle of welfare state as the fundamental constitutional principles in general. The principle of law-governed country is not to form the contents of freedom but to constrain freedom for the purpose of the government because its ideology is the endorsement of individual freedom in a pre-nation. On the other hand the principle of democracy is based on the ruler's domination in the consubstantiality of the ruler and the ruled and in the confidence of the ruled. The government forms its concrete contents premised on people who share the consubstantial element. From a viewpoint of the fundamental right which is separated from a nation, the fundamental right is to be approached by a pure viewpoint of law-governed country because the freedom of a individual is a negative formality independent from a nation. But its interrelation with the principle of democracy is not to be apprehended in breakout history of the modern Constitution. The principle of democracy and the principle of law-governed country are apprehended as the mutual balancing relation through a medium of the fundamental right which is towards the law and the order of the government. But a negative formality of freedom, the essence of the fundamental right, is overlooked. Therefore the fundamental right is to be apprehended completely if it is approached from the its double characters of a subjective right and a objective ordering. Therethrough the fundamental right of a freedom appertains to the nonpolitical domain in which the nation restrains as a subjective right. But the fundamental right of a political right and a social right appertains to the political domain in which the nation sets the limit of a fundamental right from inside as a objective ordering. By the way, in this process, the institution, the procedure and the organization which are mainly based on the principle of democracy and the principle of law-governed country are enacted in the constitutional provisions. But these are not enacted on the basis of the principle of welfare state. Therefore it is necessary to use them, enacted in the constitutional provisions, as the means to realize the principle of welfare state. When the government exercise of power is not able to realize a constitutional justice on the basis of the principle of democracy and the principle of law-governed country, the principle of welfare state has the meaning to supplement these principles and to enhance the constitutional normativity in another dimension.