장애인정책의 적극적 사법심사를 위한 심사방법의 모색

Considering the unique aspect of ‘disability’, national policies on disabled people cannot reach it's goal by providing aid only when certain requirements are satisfied. It is more important to examine whether such requirements are achievable, and evaluate national policies in order to discover its’ effectiveness to disabled people. However, the Judicial branch, especially the Constitutional Court remains to take passive actions toward national policies on disabled people. It is highly questionable that such actions would benefit disabled people, and therefore, the need for active judicial review arises. ‘Welfare for the disabled’ and ‘Disability equality’ are the main two goals of national policies on disabled people. The Constitutional basis can be found on Article 34 and Article 11 of the Constitution. However, in the normative aspect of law, in order to take active judicial review a new method of judicial review must be considered. ‘Substantial review’ can be the new method. Furthermore, establishing an essential area in the Constitutional protection of individual rights and enhancing the standard of judicial review can be taken into account. Moreover, transferring to equality review in order to argue the irrationality of the standard or filing a Constitutional Complaint against Legislative Omissions and argue the deficiency of legal protection on individual rights can be considered. State should enforce disability policies to aid disabled people, help to create their own living based on the right to self determination, fulfil freedom, and realize individual rights. To achieve this, Constitutional rights on welfare and equality should be re-interpreted by the perspective of disabled people and reassure it to be in mutual supplementation relation. Moreover, not only legislative branch but also judicial and executive branch should be taken into consideration. Thus, Constitutional task to provide humane living to the disabled people and social unification can be achieved.