사회보장사건의 법원을 통한 구제절차 현황과 개선방안 = Judicial Remedy Procedures for Social Security Cases and Recommendations for Procedural Improvement

다국어 초록 (Multilingual Abstract)

The demand for social protection is expected to grow due to social changes. We are experiencing changes in demographic structure, employment relationships, and family relationships. However, there has been little public awareness of social security cases in South Korea. Social security schemes should be based on the reason of State(la raison d'État), which guarantees the basic conditions of people's lives. Low awareness of social security cases seems to reflect relatively low public concern for the basic living conditions. Reviewing the procedures for social security appeals has the significance of preemptively preparing for the social security reform and reminding the responsibilities of the State of the people.  The objective of this study is to provide a comprehensive overview of the current social security appeals procedures in South Korea and to draw policy implications for making better judicial procedures. Social security litigations in South Korea can be categorized into those related to social insurance, public assistance, social compensation, and social welfare. In order to increase access to justice, a comprehensive understanding of the current state is required. This study focuses on the status quo of appeal procedures.  The research question is to what extent social security cases are resolved through courts in Korea. It primarily depends on whether the complaints and appeals process is clear and accessible. In order to answer the question, the chapters describe the nature and characteristics of social security cases reviewed in the context of examining the system of social security law (Chapter 2), the social security case appeals procedure, including administrative and judicial procedure (Chapter 3, Section 1), current status and characteristics of judicial procedures of social security appeals (Chapter 3, Section 2), and how social security cases are dealt with in developed countries (Chapter 4).  The main findings of this study are the following:  Administrative complaints and appeals about social security benefits are differently processed according to the relevant laws. In order to prevent any possible confusion, administrative complaints and appeals procedures are in the need for structural reorganization. In terms of judicial procedures, although most of the social security cases are resolved through administrative litigation in courts, they are distinct from general administrative litigation. Relevant laws are complex, vast, and frequently revised, which makes it difficult even for experts to accurately understand the contents. Parties to social security cases are especially in need of social protection as administrative decisions often have a long-term effect on their economic life (Chapter 2).  Administrative remedies have advantages over judicial remedies in that simple objections are possible and results can be received within a short period of time. However, systematization between the procedures has yet to be achieved. Most social security cases are handled as administrative litigation in courts. In this study, administrative litigation procedures are reviewed focused on the method of filing a lawsuit, the court of competent jurisdiction, filing period, representation in litigation, litigation costs, etc. In terms of procedures in civil litigation, injunctions granted at the discretion of courts are recognized under the Act on the Prohibition of Discrimination against Persons with Disabilities. Other domestic remedies include the complaint process of the National Human Rights Commission and the order for correction from the Ministry of Justice, which are also recognized under the Act on the Prohibition of Discrimination against Persons with Disabilities (Chapter 3).  There exist different types of courts that have jurisdiction over social security cases. In many countries, judicial courts handle social security cases (Type 1). Some countries have specialized courts (Type 2). Some others have administrative proceedings or tribunals handle most of social security cases and courts exercise limited jurisdiction. In this study, the cases of France (Type 1), Germany (Type 2), England and the United States (Type 3) were reviewed. While differences appear among them, many similarities are found in basic principles. Accordingly, two or more countries’ appeals systems share the following characteristics: - Simple, convenient, and easy procedures are provided for parties to social security cases. For example, complaint forms are easy to fill out and jurisdiction is conferred on the court of the domicile of the plaintiff. - Effective remedies are available. For example, interim measures and injunctive relief are granted by courts. - Claimants bear minimum costs of litigation. If they are unable to afford to pay for legal costs, they may apply for legal aid. - Until a certain level of the appeal process, plaintiffs are allowed to defend themselves without the help of an attorney. For this purpose, even if the person is not a lawyer, persons with certain qualifications (e.g., family relationship, workplace relationship, public interest group, etc.) governed by specific legislation are able to assist or represent the party in a social security case (Chapter 4).  Based on the aforementioned findings, this study proposes the introduction of interim measures, injunctive relief and reconciliation recommendations in administrative litigations. It is also important to provide plaintiff-friendly complaint form in courts and make rules to minimize the cost of litigation for plaintiffs. Some of the ideas are for the relatively distant future. It would be desirable to adopt the system of jurisdiction conferred on the court of the plaintiff’s domicile, representation by non-lawyers, and lay assessor when the systems of social security adjudication and litigation are well-established. In terms of court organization and administration, it would be necessary to establish social security chambers in courts and training programs related to social security litigation in Judicial Research and Training Institute. Once the social security chambers are established, detailed statistics would become available as well. Lastly, it is necessary to expand the Legal Access Center in courts to substantially support the socially disadvantaged individuals.