소위 협력적 법치주의에 관한 소고 - 법치주의 구조변동의 21세기적 의미 -

The rule of law is not a self-purposed concept. The rule of law aims to guarantee the freedom and rights of the sovereign people as much as possible, so it evolves by reflecting the changes and trends of an epoch. Since the experiences and demands of an epoch are not fixed, the state is given an “unendliche Aufgabe” to deal with the constantly evolving demands of the rule of law and the “issues (Gewichtungen)” of each period. These national tasks are subject to ‘Wandel’, and such changes in an epoch evolve the concept of the rule of law. Four factors are suggested as the 21st century factors of structural change in the rule of law. 1) Information and communication technology is dramatically promoting the transparency and openness of the people's will, which are the main principles of democracy. 2) The change in the concept of property (to the concept of sharing) is spreading by the benefit of the situation that enables complete distribution due to the development of Internet information and communication technology. 3) Ecological theories that break away from the human-centered view of the world and identify humans as a component of nature are gaining social sympathy in line with the real crises of climate change and global warming. Ecological theory leads to a weakening of centralized power and dismantles the social and legal legitimacy enjoyed by the vested powers connected to the central power. In the end, this change will transform the vertical power structure into a horizontal one, promoting mutual consideration and “cooperation” for coexistence. The acceptance of the concept of ecological publicity into the legal order will be a major factor in the structural change of the rule of law. 4) Unemployment and stagnant incomes are endangering capitalism. Population growth and immigration, deepening inequality, globalization, the desire to accumulate property with both positive and negative functions, overload of ecological problems, deindustrialization of the service industry, and deethicalization of economic motive require the restructuring of the capitalist system. These factors eventually indicate “cooperation” as a major concept. In the field of law, the concept of “Der kooperative Rechtsstaat” is already being studied. As the social demands that appeared in the transition period from the 19th century to the 20th century were captured in the principle of the rule of law, the concept of “cooperation” that becomes the driving force to sustain integration and harmony in order to realize the various multidimensional demands requested in the 21st century in the principle of the rule of law needs to accept. In the so-called “Der kooperative Rechtsstaat”, cooperation between ‘people and people’ and ‘state and state’ is emphasized as well as cooperation between ‘state and people’, which was emphasized in the “sozialer Rechtssaat”.