보장국가론의 비판적 수용과 규제법의 문제

Recently the theory of the Ensuring State(Gewährleistungsstaat) has been introduced in korean administrative law on a large scale. But this academic tendency which had arisen from german administrative law brought misunderstandings and problems in application. The idea of this theory which evolved from the enabling state is different from this state with regard to responsibilities to guarantee that remain within the state after it enable private bodies to provide public goods and services. But the ensuring state has different dimensions and functions in contexts where the concept is applied. One dimension that laid on vertical line is related to the phage of state’s responsibilities, from the state’s performance responsibility(Erfüllungsverantowortung) over the state’s ensuring responsibility (Gewährleistungsverantwortung) to the state’s standby responsibility(Auffangverantwortung). The other dimension that is formed horizontally explains ‘shared responsibility’ as a structure making public and private actors to cooperate with each other for public interest. In addition to the analytic function of the Ensuring State, it’s politic function should be noticed, when the reform of government is carried out on the ground of this function. To confuse these two dimensions motivated by a politic function became a main reason for recent misunderstandings and vagueness. This study tried to clarify what is the key role of the concept of the ensuring state and it’s ensuring responsibility in oder to explain the situation in korean Network-industry like railway, electronic, post etc. under the pressure of privatization. Because the market situations in this area are not the same as in Germany respectively, the structures and roles in which the state is responsible for public service and regulating the market player should be also different. It is not therefore determined by theory itself whether the market that are under the control of government should be privatized. Important matter in this point will be political consensus and the principle of statutory reservation. If privatized, following state’s regulatory obligations must operate properly and legal option for correction must be hold by government. The study also attempt to compare the concept of ‘regulation’ with that of ‘Regulierung’ in german law. Finally regulatory degree and strategy on the ground of the ensuring state in the context of korean administrative law will be attractive thema here. The pros and cons of the ensuring state should be treated carefully.