고령자의 인권에 대한 특별한 법적 보호의 정당성

In today’s super-aged society, the limitations of conventional approaches which understand the elderly merely as objects of welfare policies defined by age have become apparent. This shift has given rise to normative questions concerning what kind of legal protection older persons, as autonomous subjects of human rights, ought to receive. Nevertheless, it remains insufficiently theorized whether special legal protection can be justified solely on the basis of their old age. While protective measures are relatively readily accepted when the concern is associated with disabilities such as dementia, more fundamental questions persist as to what legal significance does old age as a life stage holds in itself, and to what extent should special protection be normatively justified. Based on this background, this study argues whether special legal protection for the human rights of older persons is not simply a matter of policy discretion or welfare expansion, but a normative requirement for ensuring the substantive realization of the principles of equality and human rights protection. To this end, the study (1) examines the limitations of existing legal approaches to older persons; (2) analyzes violation of the human rights of the elderly not simply through age, but through a dual framework of vulnerability and autonomy; (3) draws comparative insights from international developments as well as elder law discourse in the United States and Japan; and (4) seeks to reconceptualize the justification of special protection for the elderly’s human rights as a form of rights-based protection. Accordingly, legal frameworks concerning older persons should be constructed in a manner that ensures their continued participation in social relationships and institutional decision-making processes, rather than reinforcing exclusion.