법률복지개념의 헌법적 정당화와 발전방안: 법률구조의 패러다임 전환을 위한 시론

This essay aims to search for a new paradigm for comprehensive legal welfare overcoming the traditional selective understanding of legal aid which has so far been understood as a supplementary scheme for the rule of law by way of guaranteeing the poor the right to access to justice. Its main argument is that the traditional concept of legal aid constructed mainly upon a liberal ideal of rule of law reveals its inherent problem by focusing mainly upon a retrospective support of the poor in the litigation process; it fails to address the necessity for legal welfare to enhance civic autonomy of a democratic republic. In a democratic republic based upon voluntary participation of the citizens,not only retrospective legal aid but also sufficient preventive legal service together with legal education helping the citizen have an effective access to justice and the social welfare system are necessary to enhance civic autonomy of the citizen. As the Korean Constitution clearly endorses, the human dignity and worth cannot be accomplished without social justice and public welfare. Sufficient and sustainable social welfare in turn requires a scheme of universal legal welfare covering not only litigation aid but also a variety of aids for alternative dispute resolution,public interest law activities and legal education service. In sum, social welfare and a democratic republic cannot be conceived without legal welfare. One of key national tasks of Korean society in the coming future is how to strategically manage to implement this new concept of legal welfare to reinforce a democratic welfare republic. A desirable option proposed in this essay is a phased approach: the first stage concentrates upon perception change among key actors having a role in legal welfare system; the second stage focuses upon the institutionalization of the new paradigm such as reforms of legal welfare delivery system, legal welfare funding and legal service market; and the final stage quests for the proliferation of service beneficiary and the nationalization of legal welfare center.