보장국가론에 대한 헌법적 평가

This study simplies and evaluates the Ensuring State Theory which has been developing in german academia of public law. This is not only to find the positive factors of the theory, but define the problems or limitations and indicate main challenges to be met for accepting. The Ensuring State Theory takes count of private-public partnerships and strategic strengthening the role of state. The Ensuring States entrust civil organizations to play the role to deal public tasks and ensure accomplishing the tasks through their ensuring responsibility. Also, so-called regulated self-regulation becomes the key model of legislation. The Ensuring State Theory can be positively assessed for various reasons. it helps us to understand the features of current status of states. it also is presenting proper ways to solve the modern states’ dilemma to tighten regulations and respecting greater autonomy at the same time. Moreover, it’s idea considers the value of a free democracy important and can be applied expansively to various fields. However, despite many advantages it’s limitations should be presented as follows; uncertainty and ambiguity of ideological directivity, lacks of clarity and experience, difficulty of regulation design, doubts about effectiveness of ensuring responsibility and effect of state’s burden reduction. There are many preconditions for accepting the Ensuring State Theory and applying to each part of Korean society. First, the review on the Constitutionality and suitability for the reality in Korea should be conducted. Second, it is necessary to set up and implement practicable regulatory system. Lastly, it is most important to consider the legal system designed by legislation changing for the Ensuring State from the practical as well as theoretical point of view not to cause the retrogression of constitutional principles or human rights.