스페인 경제헌법에 대한 고찰

Although the views of scholars differ in what the essence of the Spanish economic constitution provision is, economic constitution constitutes a part of the Constitution and it can be understood as an interpretive expression to enhance the significance of norms related to the economy. It is a new change in Spanish constitutionalism that the 1978 Constitution contains a separate chapter on economy and finance. In order to grasp the Spanish economic constitution, it is necessary to examine the constitution as a whole. It should be noted that the underlying basis of the economic constitution is closely related to the principle of the social state as in Article 1 of the Constitution. The principle of the social state is the criterion for fundamental interpretation with regard to the political and social order and presents an objective for the state to intervene in the economy in today's economic crisis. Also in the case of Spain, as a result of efforts to reflect the diversity of the various areas and the positions of the political forces, it has led to the current asymmetric decentralization. There has thus been a particular emphasis on the principle of a single market in which economic activity throughout Spain is required to have the same basic conditions. The understanding of the Spanish economic constitution is based on the economic neutrality of the Constitution, that is the Constitution does not provide a specific economic model which is the basis for judging the constitutionality of state intervention. The Constitutional Court has not explicitly stated in this regard, but it follows such premise. Nonetheless, many scholars consider the Spanish constitutional economic order as a social market economy or a mixed economic order. The characteristics of how the Spanish economic constitution in the general economy are materialized, the public initiative in the first sentence of Article 128(2) of the Constitution is a basic premise as a justification for the state's economic intervention and as a result, the meaning of the principle of subsidiarity of state intervention has broken off. Intervention to the company in the second sentence of Article 128(2) basically means the company holds ownership while the governmental authority's intervention and such cases must be in accordance with the principle of statutory reservation. On the other hand, the state also plays a role in ensuring the freedom of enterprises under Article 38 of the Constitution, for example, promoting the creation of cooperatives.