행복추구권에 대한 헌법개정 논의

Since the current Korean Constitution has taken effect in 1987, it is also anticipated that the right of pursuing happiness has been used and will be used more often by the courts of Korea according to development of right consciousness of citizens in 21st century. However, the contents and scope of the right of pursuing happiness which is supposed to be applied are not clear enough in Korea. Namely, it is not reasonable in constitutional interpretation that a certain basic human right isn't a substantive right because of its vagueness of constituent elements. Under these circumstances, the purpose of this study is to find out legal nature and contents of the right and to propose the interpretive direction of it, based on the original meaning of Jefferson’s pursuit of happiness in Declaration of Independence of July 4, 1776. This study reviews the debates on constitutional revision to right of pursuing happiness, and gives some suggestions for the direction of constitutional revision and interpretation. First of all, it is not obscure that the right of pursuing happiness as a general fundamental right should be always interpreted, in the whole system of constitutional text, as a supplementary clause, according to lex specialis derogat lex generalis. Second, the right of pursuing happiness should not be conceived as a series of affirmative duties of Government to wipe out poverty in Korea, because Korean Constitution stipulates a series of social rights so that clearly articulates the rights of people to subsistence benefits.