한국사회 빈곤층의 사회권 확보를 위한 국가의 의무와 국가인권위원회의 역할

Abstract

his article deals with two main issues: ①the Nature of state parties’ obligations of International Covenant on Economic, Social and Cultural Rights(ESCR) and ②Roles of National Human Rights Institution. The understanding of human rights including ESCR in Korea has not shown difference with that of the international community. From the normative point of view, ESCR have been recognized in the Korean Constitution even long before Korea ratified the International Covenant on Economic, Social and Cultural Rights(ICESCR), yet they have received much less attention than civil and political rights. For a long time Korean society has recognized ESCR as programmatic rights when interpreting them in terms of constitutional basis, and consequently limited ESCR to the obligation to strive or aspiration toward life worthy of human beings. For that reason, it has been broadly accepted that the individual ESCR prescribed in the Constitution cannot be implemented without them into legislation. The state obligations under the international human rights instruments are understood to be multi-faceted. That is to say, state obligations are understood to have a three or four layered structure, emphasizing obligations to respect, protect, fulfill or to promote. The understanding that state obligations are multi-dimensional makes it possible to have realistic approach in the domestic implementation of ESCR. The dichotomy between civil and political rights and ESCR, namely that civil and political rights are negative rights and ESCR are positive, has made individual rights under the ICESCR just declarations in a vacuum. Recently, in its second term, National Human Rights Commission(NHRC) has listed the implementation of ESCR among its priorities. The most important factor in studying ESCR is to understand the nature of the rights and state obligations, for without the understanding that the nature of state obligation in ESCR is not different from that of civil and political rights, there is hardly any room for work for ESCR by the human rights institution. NHRC was established following the Paris Principles. Thus the Commission is mandated to recommend human rights policies to institutions concerned and to conduct investigation of complaints as well. However, compared to no limitation on policy recommendation, the statutory legislation called The National Human Rights Act clearly puts limitation on investigation of complaints, which should be, in principle, an alleged violation of civil and political rights. In order to overcome the limitation, while trying to revise the Statute, the Commission is dealing with limited ESCR violation cases by interpretation of the Constitution at the moment. That is to say, Article 10 of the Korean Constitution stipulates the right to human dignity and to pursuit of happiness, and the violation of Article 10 falls into the Commission’s mandate of complaints investigation. Therefore, with the interpretation of the general provision, the Commission has decided whether or not the government violates ESCR. Finally, the author suggests NHRC to implement state obligations of ICESCR in Korea several tasks: 1. NHRC shall make standards on state obligations of ESCR to recommend government bodies and legislature. 2. NHRC shall make a realistic action plan to substantiate the above goal. In this regard roles of investigation and monitoring function of the NHRC shall be more stressed.