사회권 침해에 대한 사법적 구제와 합리성 심사

This article seeks to answer how the Constitutional Court should provide a remedy when a claimant (citizen) seeks redress from the Constitutional Court for violations of social rights. The question is how the Court can provide an effective remedy without undermining democratic principles. Of the two approaches to judicial review of social rights that have been proposed so far, i.e. the minimum core approach and the reasonableness review, this Article supports for the latter. The reasonableness review considers proportionality among a variety of factors, emphasizes the procedural or formal aspects of social rights policies, examines whether the legislature or the executive has abused its discretion, and, when finding finds violations of social rights, does not issue specific implementation orders. The strength of this approach is that it provides a more rigorous judicial review than the so-called Wednesbury test without compromising democratic principles. While there is some doubt about whether the reasonableness review can effectively remedy victims, this Article argues that it can, in fact, remedy victims more effectively and appropriately than the minimum core approach. It also points out that the majority of global social rights scholars support this approach. The above discussion makes clear the fact that the Korean Constitutional Court is adhering to the outdated Wednesbury test. This is problematic because the test has proven inadequate to remedy human rights violations. This article recommends that the Constitutional Court abandon this test in line with the global trend and take a more active role in redressing social rights violations by adopting Reasonablemess review. However, it is not advisable for the Constitutional Court to go beyond the reasonableness review to judicial activism. With due respect to democratic principles, the Constitutional Court should limit its role to identifying manifest unreasonableness that may be hidden in the social rights policy in question from the social rights perspective. That alone, it is argued, is enough to have a meaningful impact on the protection of social rights.