이 시대가 요구하는 헌법재판소의 인권철학: 사회권의 사법심사강화를 위한 전제

The Constitutional Court, since its establishment in 1987, has left a significant mark in the development of human rights protection in the Republic of Korea but there is also room for improvement. The most outstanding task lying in the Constitutional Court is to develop its own philosophy of human rights, as the constitutional interpretation of the fundamental rights prescribed in the Constitution is intertwined with philosophy of human rights or constitutional philosophy of each Justice of the Court. However, there has been criticism against the Constitutional Court that the Court has made political judgments affected by the appointment process in numerous high profile human rights cases. Considering this criticism, this paper discusses the foundations of philosophy of human rights that are essential for the reinforcement of justiciability of the economic, social and cultural rights (ESCR) in the Constitutional Court. I suggest a number of components that human rights philosophy should embrace. The first is the philosophy of coexistence. Human dignity in Article 10 of the Constitution is to provide for a precondition that everyone shall co-exist in harmony with others in our society. The rationale behind the call for respect and protection of social minorities and the weak is the philosophy of coexistence that the Constitution pursues. Accordingly, the philosophy of coexistence can provide the ground for creation of the rights of coexistece. The second is the interpretative guidance of Article 1 for the other provisions in the Constitution. The Constitution should be interpreted in light of the nature and significance of Article 1 that reads, “[T]he Republic of Korea shall be a democratic republic.” The primary purpose of Republic(Res Publica) is to ensure the freedom of everyone protected by the Constitution. The third is the pursuit of poetic justice in the Court’s decision. It is a kind of the descriptive philosophy which will lend much broader support to the Court’s decisions. Once the Justices pursue poetic justice based on empathy, it may impart new meaning to the Court’s decision. The last is a new paradigm for the protection of ESCR. The Constitutional Court needs to abandon the dogmatic binarism of civil and political rights; negative obligation of a State; obligation to promptly implement; justiciable rights vs. ESCR; positive obligation of a State; obligation to progressively implement; non-justiciable rights. This dichotomy has been denied in the modern human rights theories; there must not be such differentiation between two sets of rights. To this end, the nature of State obligations is to be redefined. There remains the question of how the Constitutional Court secures this philosophy of human rights. To address this question, I conclude that the diversity in the composition of the Court can be a starting point. In order for the Court to effectively carry out its mandate as a guardian of the Constitution, the composition of the Justices should be diverse so that the Court can adjudicate cases before it with the Constitution standards guided by the philosophy of human rights, rather than by political considerations.