보건권의 헌법적 의미: 복지국가 실현을 이끄는 역동적 인권

The constitutional school of Korea generally regards a right to health as a constitutional right although no provision of Korean constitution comments public health right. By a positive interpretation of Article 36(3) of constitution which means “the health of all citizens shall be protected by the State”, we can find a normative foundation of constitutional right to health as an entitlement or claim right to the government. In an aspect of legal nature of a right to health, most constitutional scholars accept it as a social right which might be realized by governmental policy-making. Traditional argumentation which emphasizes the incompleteness of social rights compared with liberal rights depends on a right theory distinguishes positive rights from negative rights. However, recent human right theories such as Needs Theory or Capabilities Theory negates this distinction and underlines the importance of guarantee of social rights for the equal protection of liberal rights. In this context, right to health should be regarded as a sort of universal human rights required to be fully realized for maintaining human dignity. Also, under the constitutional principle of welfare state, a constitutional requirement is to establish a concrete and dynamic scheme of right to health which is a core part of wellbeing.