고용보험법, 분바른 가면에서 연대적 공생의 권리로 – 위임입법과 결합된 불확정 개념에 대한 법원의 법해석 권한 확보방안 –

This study identifies the cause of the extremely low number of precedents in Korea's social security law field (0.2–0.3% of all annual lawsuits) as a structural problem where the court's interpretive power over the indeterminate concept of social security entitlement rights is constrained through administrative legislation. It analyzes this issue focusing on unemployment benefits under the Employment Insurance Act. This paper details how the requirements and effects of social security entitlements are not directly stipulated in the law but are comprehensively delegated to subordinate administrative legislation such as presidential decrees, ministerial ordinances, and public notices. It further analyzes how these administrative regulations are formulated in a uniform and rigid manner, effectively blocking the courts' interpretive discretion. Particularly, it was confirmed that the core authority of the judiciary—the power to interpret laws—is being rendered nominal. This occurs as regulation possessing the substance of legal interpretation rules or discretionary guidelines is elevated to the form of normal regulation, gaining external binding force over judges and citizens. Proposed solutions include: first, weakening or denying the external binding force of administrative rules in the form of regulation and supplementary administrative rules; second, interpreting uniform standards in administrative legislation as illustrative provisions or maximum limits, as demonstrated in the Supreme Court's Tourette Syndrome ruling (2019). Analysis of the requirements for jobseeker's benefits under the Employment Insurance Act revealed that core indeterminate concepts such as ‘unemployment’, ‘job search efforts’, ‘reason for leaving employment’, and other core indeterminate concepts are mostly specified in subordinate administrative legislation without explicit legal delegation. Even when delegation exists, the substantive content of the delegated administrative legislation consists of legal interpretation rules and discretionary guidelines—which are administrative rules—making it difficult to recognize their external binding force. To substantiate social security entitlement as a ‘right to solidarity and coexistence’ rather than a ‘mask of pretense’, systematic research on the normative structure and interpretation theory of indeterminate concepts is necessary. Moreover, establishing an institutional foundation enabling courts to actively exercise their interpretive power over indeterminate concepts in social security law is urgently required.