Constitution and Legal Basis of Health Rights: Lessons from Cancer Survivors in South Korea

Abstract

Social fundamental rights can be called ‘factual claims' of the nationality of individuals, which means rights that require active action by the state for the realization of rights. On the other hand, the ‘normative benefit right‘ is the right of the state to demand the enactment of certain laws and regulations. Specifically, the factor to be considered in the analysis of the social rights aspect of the right to health is the ‘publicness of healthcare service’. In order for the right to health to function effectively as a social fundamental right, it must reflect the nature of medical care that is most necessary to maintain the right to health. In the end, the right to health is related to all members of the society and has a ‘normality of publicness' in the sense that it cannot exclude the benefits of some members. The health care sector, which may cause market failure due to what is termed the asymmetry of information, must be strictly observed in consideration of the essential value of health.