헌법에 있어서 경제민주주의에 대한 고찰

The Economic Democracy of Constitution should divide the policy of economic regulation and that of social regulation. The regulation policy must confirm the right of human dignity and the principle of rule of law, and the equal principle and the principle of social state due to the Economic Democracy. If there are the mono-oligopoly market and market failure which restrict the fair and free competition, State can intervene market economy. State should not directly intermeddle market process such as both production and consumption by economic subjects, but we can correct those unfair market performance and misallocation of resource. Under these conditions, Social regulations should be reviewed concerned with maintenance of human life and health and the protection of the aged and disabled by the screening criterion of equity. For example, the priority for their life and security and health of social minorities such as juvenile and old age and disabled will confirm to the Economic Democracy as resource allocation due to fairness rule. Above all, if the enforcement of the Economic Democracy, it may not be conceded the freedom of broad legislative discretion on regulations of economic freedom by the basis of presumption of constitutionality. To the contrary, the passive regulation of public order may be applied to the rigid criterion of reasonableness, and the positive regulation of public welfare should be tested by both the rule of reasonableness and principle of clearness. In final, both economic regulation and social regulation can be applied by same tests of legal criterion. The Constitutionality of regulations can be judged from the nature and contents and range of those freedoms which will be kept from by the goal and need for regulation through weighing value in rigid.