헌법상 국가책임에 관한 이론적 고찰

Demands for publicness nowadays are growing as society changes rapidly. As constitutional law has not only a normative but also a factual nature, it is closely associated with social phenomena. It is also closely related to the implementation of publicness by the state, as it functions as the state’s fundamental law that regulates the state and its constituents. It is therefore necessary to define how a state takes the normative responsibility for its social matters, giving consideration to the constitutional state responsibility. This article is intended to discuss the constitutional responsibility of a state, based on the concept of the common responsibility to cover all legal and non-legal responsibilities. The constitutional state responsibility has four components: a state as a subject; the constitutional value as instance; the constitutional duty as the object of actions; and the people as the object of attribution. The concept of a state embraces both narrow and broad meanings. The former is an institution that exercises the governmental power, and the latter refers to a human-spatial community to determine the common will and to establish the state in the narrow meaning. A state in the broader sense decides the core values, which are expressed as the constitutional values in the constitutions. Its constitutional duty is an oughtness derived from the legal demands based on the constitutional provisions on the fundamental rights, system guarantee, and state objectives. People refers to individuals who possess and exert the sovereignty, and the collective exercise of their sovereign rights is expressed as a single and indivisible intent of the community through the state in the broader meaning. As such, the nature of the constitutional state responsibility bears both legal and non-legal responsibility, despite its appearance as a legal responsibility alone. Where emerging social issues require state actions and cannot be resolved by the autonomy of the society, the first step is to review the existing constitutional values and duties to determine whether the state bears responsibility over the matter at hand. If it is impossible by the current constitution, then an amendment of the constitution to accord normative power to the state’s non-legal responsibility and convert to a constitutional state responsibility will be considered.