保障國家로 인한 行政法의 構造 變化

We cannot control and overcome Modern-Type Risks for example, MV Sewol sinking accident, expanding MERS events, the nuclear power plant explosion caused by Tsunami, so many Hacking cases on infrastructure facilities, only with the conventional administrative law theory and legal system. Now we must choose the right way to control the Modern-Type Risks among 3 roads; one is to walk in the way of aggressive national regulations which strengthen the regulation, another is to continue a thorough walk the road of privatization, the other is to take a new and third path so called “State Guarantee” which is try to permit 'Autonomy in the market' at first, but in the case of market failure Gov. should fulfill the duty to intervene to control the risks. Now is the time to renew and remake the study on the conventional administrative law theory and legal system in the view of “State Guarantee” or “State Warranty”, because we had experienced the Market failure and Government failure in controlling these Modern-type Risks. At first, we must separate administrative sectors into two parts; one part is sector that can promote economy and efficiency through privatization, and the other is sector that should not be privatized. Secondly, if Gov. administrates in the other sector which should not be privatized, Gov. should try to furnish and maintain Gov.'s Organization including to amend or even revise of Government Organization Acts for thorough and successful control of Risks. Thirdly, if Gov. administrates in the sector of privatization, it should carry out it's duty to monitor and oversee whether or not private companies are properly controlling the Modern-Type Risks even after privatization. And in the case of Market failure which means that they can't control Risks any more, Gov. should do duty to intervene in those problems and control of them as “Guarantee State”. “Guarantee State” is tend to respect the autonomous regulation and market self-control. But Gov. should do duty to assist and help the Market in the case of Market failure. We can call this structure as “Guardianship Liability for Warrants”. “Guarantee State” implement a similar structure to ensure accountability after the subsequent production of the manufacturer or the sale of the merchant. This Guarantee shall be responsible for expanding the range of Various types. Gov. should expand to guarantee and warrant in these cases; for example, case that the Gov. is causing the Modern-Type Risks, contrary case that it does not a passive control of modern-type risk in spite of the guarantee obligation, case that it does not intervene in conflict between people or companies, and case that officers can not be equipped with a expertise to control Risks. And Gov. should expand to warrant high possible Risks, as well as already occurred Risks prevention. If we are start to walk in the Road of “Guarantee State”, we are going to experience a lot of structural changes in administrative law theory and practice. And we should also amend and even revise Government Organization Act and Local Government Organization Act including Constitution so that we can supervise responsibly and command officers to guarantee with specialty and responsibility also in the internal administrative organization. We are going to modify the principle of private autonomy including civil law and commercial law for “Guarantee State”, and apply to the legislative, the judicial, and the administrative. Guarantee State's structure which is so called “Guardianship Liability for Warrants” is expanded as follows in consideration of a fact that municipalities can perform more effectively Guarantee Liability than Central Government. Primarily it entrusts the autonomous control and regulation of the market. But when market can not control the Modern-Type Risks any more, Local Gov. has priority and precedence over Central Gov. to control the Risks. Even when the Local Gov. can not control those Risks, Central Gov. shall exercise the guarantee accountability ultimately. Now we stand on the view that we can overcome the limits of regulatory State or privatization through the “Guarantee State”, we should take a lot of effort to modify the conventional and traditional Administrative Theory so that change the legislative, the judicial, and the administrative practice.