위험사회에서 국민의 안전보호의무를 지는 보장국가의 역할 - 현행 안전법제에 관한 고찰을 겸하며 -

There are the three-step model and the two-step model with respect to the divisionof danger and risk. While danger is associated with the probability, risk is associatedwith the possibility. The two-step model seems to be the more valid in terms of apractical approach. There is not only a tension but also a common intersection between liberty andsecurity. Freedom should not be always sacrificed in order to ensure safety. Thisidea will lead to unsafety by having unpredictability of the state police power. Thebalance and harmony ought to be maintained between liberty and security. The guaranteeing state as a third way is the state performing public tasks in cooperationwith the private sector. The guaranteeing state, thus, aims for a slim state ora minimal state. However, the guaranteeing state is not deregulation but the moredemanding regulations. On the other hand, the guaranteeing state plays a role to activelycollaborate with the private sector, closely cooperate with the private sectorand strengthen the private sector to perform public tasks faithfully. Responsibility ofthe guaranteeing state is divided into the implementation responsibility and the guaranteeingresponsibility. The guaranteeing responsibility can be divided into supply responsibility,acceptance responsibility, buffer responsibility. While private sector isresponsible for the implementation responsibility, the guaranteeing state shall be responsiblefor the implementation responsibility and the guaranteeing responsibility. With regard to the current safety legislation, the Framework Act on the Managementof Disasters and Safety does not guarantee the effectiveness of enforcement in manya declarative rules. There is a necessity to regulate the applicable provisions based on disaster management plans in accordance with the types of disaster. In addition,the Ministry of Public Safety and Security must give fundamental responses to managingand being held accountable for all the disasters, and seek for the alternatives. The institution has to be established in order that the public make their own effortsto pursue their safety. In conclusion, the Framework Act on the Management ofDisasters and Safety must turn a state-centered into a cooperation system betweenpublic and private sectors.