안전권의 헌법적 의의와 국외적인 수준에서의 안전권 보장 소고

The recent outbreak of the unprecedented disease (COVID-19) and various safety accidents in Korea has raised public interest about safety. In particular, the interest is concerned with the discussion of the basic concept to the right of safety. The State would be able to recognize the basic rights of safety in that it bears fundamental obligation to protect basic rights of citizens. In fact, it is not difficult to recognize and admit the basic rights of safety, considering the discussion of the status and function of the State emphasized by liberal thinkers such as Hobbs, Locke and Russeau, as well as John Stewart Mill, who advocated social contract theory. The problem is that it is difficult to determine the level of guarantee for the right to safety. In order to protect Social Constitutional Rights, the government is asked to act, it is reasonable to say that the right to safety demands the government to act for specific protection similar to the Social Constitutional Rights. Given that the issue about the right to safety is concerned with the discussions of the level of protection, it is true that the major issued of safety rights are discussed in the level of domestic domains focusing on the criteria for unconstitutionality (of the State’s action for protection of the right to safety). However, given the uncertainty of the concept of safety, expandability and the new risk factors that continue to emerge, discussions on citizens’ right to safety should be taken place with the macro view. In particular, it is true that increased exchanges and travel between countries due to the recent development of transportation means and the advancement of telecommunication technology, it is reasonable to postulate that the need for discussions on safety rights at overseas levels is doubled. Of course, the right to safety at the foreign level can also be materialized through legislation by the National Assembly, but the problem is that it is very difficult to let the legislative branch to take active measures (to legislate) due to the fact that there are limitations of exercise of State jurisdiction and the possible conflict of jurisdiction between countries. Under these circumstances, the main measure to guarantee the right to safety of the Korean citizens is to stick to the policy to enhance the influence of our government. In particular, for that purpose, it is desirable to actively utilize the current international legal system. For that, the legislative branch need to legislate the concerned laws for the sake the specific policy. Currently, 「the Overseas Emergency Relief Act」 exists, thus we can revise the Act for the policy or we can enact a new law dealing with the matter.