헌법상 복지국가에서 돌봄의 제도적 구현: 대전환시대의 공법적 대응을 중심으로

The role of the state and the response of public law during the great transition period have been discussed since 2020, mainly in academic societies that deal with national discourse, such as the Public Law Academy and the Academy of Public Administration. The topic addressed in this paper is the role and function of “care” as a constitutional agenda that gained significant importance during the great transition period. Even in the medical field, care and treatment are differentiated. Unlike treatment, which is conducted for the purpose of returning to normal, care is closely related to an individual's quality of life by meeting daily needs either in conjunction with the role of assisting treatment or independently. In some cases, medical staff may intervene, but medical staff and non-medical staff are required to act independently or cooperatively as care providers. For people vulnerable to disease in particularly vulnerable situations, such as a pandemic, care itself can play a critical role in maintaining life. From a human life perspective, care is required in the early stages of life, such as for infants and children, and at the end of life, such as in the elderly, and demand for care arises due to physical and mental vulnerabilities such as pregnant women, patients, and the disabled. Care is essentially caring for people in a vulnerable state who find it difficult to care for themselves, so its content and scope are extensive. However, simply providing people in need of care with access to social welfare services can reduce the demand for care. The complexity lies in the fact that it cannot be satisfied. However, after going through a great transition, a critical awareness emerged that the issue of care should not be left to the realm of social autonomy but should be recognized as a basic human right that must be guaranteed as a human being, and it was recognized as a constitutional issue as a task for realizing constitutional rights and a welfare state. It has come to a point where it has to be done. Care has been treated as a part of the nursing field or the social security system, but it needs to be recognized as an issue that our Constitution must look at from the perspective of the responsibilities specifically required of the nation and the basic rights of the people during a great transition. Because care requires the state to take action or provide benefits in terms of what kind of social security system it will establish, care must operate within the principles of the welfare state within a legal system that considers the principle of the welfare state as a core constitutional principle. The post-Corona transition period is sometimes described as a risk country, a dangerous country, and an inclusive country, and it is believed that the response to this can be the paradigm of a caring country. From the legal principles of the Constitutional Court, which has judged on the premise of an autonomous, independent, and mature human being, the concept of care appears to be a helpless and non-independent concept, but it is a concept that is perfectly suited to implementing welfare state justice in the era of great transition. It is judged to be a concept that can fill in the illusion of Kang Hak-sang's concept of a welfare state and the emptiness of the ideal human image that has been discussed to this day. A human being who exercises the right to self-determination must be a mature human being with the ability to make rational decisions. However, from the time of birth, humans have to go through a period in their life cycle where survival is impossible without the care and nurturing of a guardian, and they have physical and mental vulnerabilities due to disabilities, old age, etc. During the period of existence, survival may be difficult without appropriate care from others. In addition, we are constantly exposed to social and natural risks such as disasters, poverty, unemployment, and disease, and in particular, the country is required to respond to the demand and need for care from social risks caused by the great transition period. This is because care is an area that requires the intervention of others, so it requires an act or act of benefit from the state.