한국 경제질서와 헌법상의 경제조항에 관한 연구 - 독일기본법과 관련하여 -

The economy nowadays functions as the most important part of the state and the life of people. The constitution, the uppermost highest norm of state, regulates it with a clear written article as well. However, it has not been long since the economic domain was regarded so important in our society and became an object of law. At the initial stage of the modern age, there was a certain distance between the market and state. The state merely guaranteed the freedom of property right and freedom of sales. But as the gap between the rich and poor exacerbated after the mid-19th century, and as securing a certain income through economic activity became vital for the maintenance of people's life and development, the state could do nothing but to include the economy in the legal state order. Thereafter economy established itself as the core of people and nation's activity and its importance could not be emphasized more in the age of globalization. The Korean constitution has had a chapter of economy since the founding of the nation, and its basic contents have been ensued to the current constitution. The current constitution defines economy at Chapter 9, and Article 119 defines the function and role of state on the economy. This Article defines the contour of the Korean economic order, and the intervention and mediation of the state toward it as well. Due to this article, scholars are giving various opinion on the issue but the majority interpretes it as a declaration of social liberal economic order. People who regard the intervention of the state in the market, which is defined in the economic clause of the constitution, as undesirable insist that the economic clause should be weakened. Opposing opinions against them assert that it was the very economic clause which enabled most of the Korean corporations to expand their domain under the protection of state. Namely, since the state intervened in a various form in the market based on the constitution, conglomerates composing a considerable proportion of the national economy could come to exist under the state's protection. Meanwhile, since the German basic law(Grundgesetz) does not have an Article directly defining the economy, it should be determined only in a wider context which kind of economic order the state is declaring. Considering the contents of German basic law, which is grounded on the basic principles of social legal state under democracy, it can be inferred that the country has on one hand a liberal market economy. On the other hand, it has an aspect of social market economy considering its declaration of social state principle. Nevertheless as mentioned above, the intervention of state in the economy is only possible under constitutional order, and only in cases where the guarantee of basic rights is in need. The economy in the modern society is essential in determining a nation's fate. Unlike Germany, our Korean constitution regulates the national economy through a written Article, which makes us think once more of its meaning. And it is important to conform economic policies and their application to the purpose of the constitution.