사회권의 사법구제가능성 강화를 위한 사법부의 역할

초록

The justiciability of Economic, Social and Cultural Rights(ESCR) is the ability of victims to claim relief to the judiciary when the ESCR guaranteed by the Constitution or international human rights law are violated. In other words, the ESCR, like the Civil and Political Rights(CPR) which is no question in the possibility of judicial relief, is judicial norms that the judiciary can use to rescue the victim. According to the claim that the CPR and the ESCR are different in nature, ESCR is difficult for the victim to receive judicial remedies even though they are infringed. However, in the international community, the justiciability of ESCR is already common sense. It has been largely influenced by the advanced interpretation of the UN Committee on the International Covenant on Economic, Social and Cultural Rights(ICESCR) and the progressive judicial decisions of some states that follow the Committee’s positions. This paper examines the trends and emphasizes the role of the judiciary in strengthening the justiciability ESCR in Korea. To this end, It first pointed out that the Constitutional Court does not have a firm position on the legal character of ESCR as a legal right. It also explains the direct application and indirect application of the international human rights treaties because they are highly relevant to the domestic application of the ICESCR which we ratified. Chapter 4 is the core of this paper, which examines judgement methods to strengthen the justiciability of ESCR from comparative legal perspectives. It will explain the state's minimum core obligations, prohibition of retrogression and reasonableness tests in the ESCR often used in the UN and national courts, and argue that they are ESCR review methods that are usefully used by the judiciary in Korea. Finally, in order for the judicial review of ESCR to work properly in Korea, it is necessary to review the separation of powers and judicial activism in detail and suggest that it is also a good idea to join the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.

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