서강대학교

초록/요약

Korean Constitution declares a human dignity and worth in Constitution Article 10 and has various fundamental right below to achieve human dignity. Today, Korea has developed in an advance of the human dignity. Though, however, the handicapped are members who are eligible to have dignity to be treated as a same person in society, in fact they have been not treated as members of Korea society. They always have gathered together as a group of outsider and non-handicapped have been alienated from Korean society but the people who need to be treated with sympathy and dispensation. In an ideal view, an advance of the handicapped's dignity, and in a realistic view, the increase of possibility to be the handicapped, the right to exist of the handicapped is a minimal standard to let them live with human dignity. As a result, this right should be guaranteed not only in the extent of maintenance of a scanty existence, but the extent of forming an environment for the handicapped to be members of society. This is essential to guarantee the right to exist of the handicapped. To be specific, the range of the right to exist of the handicapped include not only the passive policies which are giving pensions and benefits but also the active policies that mean forming a fundamental condition for the handicapped to come into the center of a society. Therefore, the discovery of the right to exist of the handicapped in Constitution Article 34 (5) can be a groundwork for transaction of recognizing that the handicapped are active subjects of right. According to Constitution Article 34 (5), this study confirmed that the handicapped, as an independent subject, have the right to take especial guarantee and that the right is characterized by the fact that it restrains the legislation of National Assembly, so National Assembly is under legislative duty to guarantee the right to exist of the handicapped. However, Korean academia of law has disregarded this constitutional interpretation in spite of the theoretical, practical necessity. Though Korean Constitution, amended in 1987, unlike foreign constitution, provides the right to exist of the handicapped explicitly distinguishing them as an independent subject from the other subjects in Article 34 (5), the major theories did not discover independent fundamental right of the handicapped and take foreign Constitutional theory to interpret the right to exist in Korean Constitutional. Consequently, the right to exist of the handicapped lost its constitutional meaning and effect. Constitutional Court consistently has made conservative decision in cases on the right to exist of the handicapped, following the major theories that do not understand the matters of the handicapped. As discussed above, Constitutional Court could have not understood the right to exist and the fact relevance about matters of the handicapped in those cases, and Constitutional Court restricted the range of the right to exist to the lowest level of life. Consequentially, Constitutional Court has deprived the right to exist of the handicapped. The interpretation about Constitution Article 34 (5) should be as follows. First, the existing social rights are right to live on first stage and characterized by "broad" right to live. Second, women, senior citizens and the young in Constitution Article 34 (3) and (4), who are second-class citizens, are the subjects who are eligible to enjoy social security and welfare served by government according to Article 34 (2), and their right to live is on the second stage, characterized by the relative right to exist. The right on second stage is narrower right than the right on first stage. Since government shall have the duty to endeavor to promote social security and welfare, it has broader legislative discretion to carry out its duty, considering a government budget, levels of incomings and life, etc. Therefore, the right to survive on second stage is defined as legislative discretionary right, including the right of claim for social welfare and public assistance. Finally, the right to exist of person with physical disability in Article 34 (5) is the right on the third stage that is the means for those who are incapable of earning a livelihood to make a living in a desperate situation. This is characterized by an absolute right. Government has so little legislative discretion in course of the legislation and policies for the right on third stage that the right is defined as the legislatively restrictive right to exist. In this context, the existing institutions on several Act for the handicapped have not been suitable to guarantee the rights of the handicapped. Since the institutions were not established on the view of the handicapped and did not reflect realities of the handicapped, they have been less effective. The policies for the handicapped made by experts of social services who are the non-handicapped and not sensitive about the matters on the handicapped have not reflected the intentions of the handicapped and not achieve their purposes sufficiently. Though some drawbacks were corrected as time goes by, the policies should be grounded not on a view of social services but on a view of the handicapped's rights to guarantee the rights of the handicapped Japan is not only the nearest nation with Korea but a nation that has strive to adopt institutions for the handicapped of developed country. Reviewing the institutions for the handicapped and the cases of Japan court, it is possible to take an advanced direction of a Korean institution for the handicapped institution. The guarantee of right to live of the handicapped is the minimal condition for the handicapped to be members of social community who have human dignity. Once the minimal condition is met, the handicapped can be independent enough to take social responsibility and finally contribute to the integration of the society. On this perspective, they can become the main agent in socail community from just a beneficiaries who take benefits.