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Affinity between Democracy, Rule of Law and Welfare State: Application of the Parlamentsvorbehalt to the Social Security Act and its Relation with the Development of the Social Security Programs: Compare Korea and Germany

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1경상대학교

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ABSTRACT

Parlamentsvorbehlat is a legal term which has originated in Germany. The term means that the assembly should regulate for itself anything which influences the life of citizens and is related with the realization of the basic rights. Democracy principle legitimates the legal term. On the one hand, both Korean and German Judicatures have applied Parlamentsvorbehalt to the matters related to the traditional basic rights such as the right of freedom and the right to own property. On the other hand, only the German Judicature has applied it to the matters related to the social rights. The German Constitution(Grundgesetz) abstractly guarantees the social rights,proclaiming that Germany is a Sozialstaat. Then the German Assembly is to realize the social rights with formulating the German Social Security Acts. It regulates for itself the Acts which influence the life of citizens. It means that Parlamentsvorbehalt is realized in the German Social Security Acts by the German Assembly. Contrary to Germany, Korea concretely declares the social rights in the Korean Constitution. However, the Korean Assembly does not realize for itself the social rights with formulating the social security acts. It only delegates the right to regulate the Acts to the executive. This delegation type violates Democracy principle. The Korean Assembly should control for itself the essential matters of the social security acts related to the social rights. There is another reason why the assembly should regulate for itself the social security acts. When the articles are discussed in the assembly, each party employs those debates as political chances to gain voters. Consequently, it results in the development of the social security programs.

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* References for papers published after 2022 are currently being built.

This paper was written with support from the National Research Foundation of Korea.