다문화사회와 사회적 기본권

다국어 초록 (Multilingual Abstract)

The policy for foreigners in Korea is now facing a new problem which has emerged with the large influx of foreign workers especially since 1990s as well as with the increasing rate of the international marriage. With the anticipated low fertility and the aging population structure, the policy for foreigners is likely to increase considerably in the Korean society. This article has the object to explore the constitutional social right status of foreigners in Korea. To put it concretely, two questions will be raised here: (1) Are foreigners eligible to constitutional social rights?; (2) In which ways could these rights be realized? There seemed to be neither explicit constitutional ground to develop the reasoning on these questions, nor recognition on this matter in mind of Korean Constitution Fathers. Theoretically, discussions on the basic constitutional right status of foreigners could provide the clue on this matter. However, it has been discussed without consideration on the complexity and particularity of the multi-cultural society. To approach this problem, some points will be made here. First, the concept of the nationality as the subject of the basic constitutional rights and the nexus of the nationality and the territory should be reconsidered in a new perspective. The questions is as follows; Is the nationality the exclusive status given to enjoy basic constitutional rights, or is it just natural and inclusive eligibility making people to enjoy the rights, which is derived from the nexus to the territory and can be expanded to whom have the similar relation to the territory. Second, basic consitutional rights regulate the relationship between the nation and individuals in the living spheres. These rights are realized, on the one hand, bilaterally between the state and individuals, on the other hand, in participating in forming the community order. The basic constitutional social rights of foreigners should be coordinated considering two positions, namely the subject of the human rights and the members of the community. Finally, we should take some more points into account: that the contents of the constitutional social rights in detail cannot be decided by the Constitution itself but are formed through the multi-tier decision-making of the legislative and executive branch; that it is also realized through the detailed administrative process considering the diverse situations and problems that foreigners are facing.