지하수의 헌법적 이해와 지하수 관리 체계

This research attempts to understand ground water in the context of constitutional legal theory, which considers ground water as the commons. This constitutional understanding is expected to make theoretical contributions that allows for a wider spectrum of policy alternatives beyond nationalization and privatization. Currently in Korean legal scholarship, there is a theoretical controversy between the two positions in understanding ground water. One position considers ground water as public water; while the other considers ground water as private water. Moreover, these public and private water theories seem to lead respectively to nationalization and privatization when designing water resource management systems. The public water theory argues that ground water should be controlled by state ownership. In contrast, private water theorists attempt to understand ground water resources as private property in order to promote efficient use of ground water resources. Instead, this research shows that the two seemingly opposing positions are common in the sense that both fail to show a normative direction for ground water resource management in light of the constitution. Of course, the public water theory seems to be suitable to modern society because it stresses the emerging importance found in the public character of the water resource. However, public water theory also appears to shrink and simplify the constitutional meaning of ground water within statehood, namely the realm of an institutionalized politics. If the political decision-making process of ground water resource management is captured by a one-sided ideology such as a developmentalism or economic rationality, the public water theory, in reality, has a risk of functioning as nationalization for privatization of a ground water resource under the name of state ownership. In this context, this research attempts to propose a policy alternative to overcome not only the public water theory, but also the private water theory. Especially, this research describes the problem of ground water resource management by applying the concept of the tragedy of the commons. And this paper, based on the Ostrom’s theory, demonstrates the failures of nationalization and privatization in managing a common resource pool in order to argue for an ambitious project aimed at a common management system for ground water resources.