국가의 시장규제에 대한 헌법적 정당성 - 대형마트 및 기업형 슈퍼마켓(SSM)의 영업제한 판결과 관련하여 -

What makes our Constitution special is that it has the economy chapter. This chapter consists of 8 articles, from article 119 to article 127. The first clause of article 119 of this economy chapter starts as follows: “(1)The economic order of the Republic of Korea shall be based on a respect for the freedom and creative initiative of enterprises and individuals in economic affairs.” The second clause states, “(2)The State may regulate and coordinate economic affairs in order to maintain the balanced growth and stability of the national economy, to ensure proper distribution of income, to prevent the domination of the market and the abuse of economic power and to democratize the economy through harmony among the economic agents.” There is a controversy over the interpretation of this article, especially about the relationship between the first clause and the second clause. The first theory understands these two clauses in the “principle and exception” perspective, while the second theory understands these two clauses as an “ultimate economic goal” through combining with each other. This study will discuss why the second theory is valid. First, it goes back to the Founding Constitution of 1948 to see the fundamental legislative intent under this article, based on the commentary book of the Constitution written by Yu, Jin Oh. Then, this paper will refute the first theory and support the second theory logically considering the structure of the Constitution. Lastly, it will reach a conclusion after exploring the cases of other countries to draw some implications.