안전 개념의 분화와 혼융에 대한 법체계의 대응방안

In today’s society, risks coming from various disasters take on different types and have various causes. Accidents including the Saewol Ferry disaster enlighten us with the need for our society to more actively respond to risks coming from different disasters. In response to such accidents, this study looks into the legal use of the concept of safety which may be referred to as the corresponding concept to risk. As the concept of safety or security is multi-dimensional and complex, it is often used without clear distinction in terms of its meaning. In general, ‘safety’ could be understood as freedom from risk or threats that infringe upon individual’s legal interests such as life, health, and property. Thus, the concept of safety was the very evidence of justification and existence of a state in the modern thought as states tried to explain their purpose of being as a means to protect individual’s life, health, and property. Rousseau, Hobbes, as well as Locke also focused on the concept of safety as their core value in the Theory of Social Contract. In a broad scope, the concept includes both concepts of “security” and “safety”. However, to distinguish the meaning in detail, state provides public assistance such as extinguishing fire when individuals are incapable of coping with risk or threats. However, safety emphasizes responsibility of the citizens as the primary responsibility falls in the hands of individuals. Related legislations state the responsibility of the state to monitor and supervise individuals and individual’s responsibility to observe law, but put more emphasis on the individuals’ responsibility. On the other hand, as security is a concept that cannot be ensured through individual’s responsibility, state which holds public authority should have a greater role in fulfilling this purpose, and the related legislations stipulate only the state’s responsibility. As today’s society is frequently referred to as a risk society, the concept of safety as a corresponding measure to risk is being used without clear distinction in the meaning. This may lead to unclear identification of the subjects of risks which may also broaden the scope of responsibility of the state. Such problem would also make the state to intervene in matters that are concerned with ‘safety’, and the primary responsibility holders may overlap and thus blur the subject of responsibility. Thus, as such polysemy or misuse of the term safety may cause confusion in controlling disasters and risks, a regulatory decree or responsibility of the state to clearly stipulate the meaning of the term would serve as a tool to regulate and subjugate the public. Especially it is important to notice that Foucault’s conception of safety is being strengthened in a society we live in today where new forms of liberalism are being introduced. In a space called ‘safety’, planning or strategy of governmentality is being realized in terms of not only individuals’ internalization of regulations, but also as a means of life management. For example, in political economy, those who do not yield sufficient benefit from the cost-benefit analysis are excluded from the safety net of the state, and are exposed to the risks of various accidents and disasters. Damages inflicted upon such minorities are merely evaluated statistically, and are treated as a result of limited government budget. Such planning or strategy turns risk into a controllable element, and the politics of exclusion and risk management that exclude those who are deemed to incur risk out of the society will bring about sacrifices of numerous social minorities, and thus should not be overlooked.