사행행위에 대한 국가 규제의 근거와 한계 ― 해악 원리와 후견주의에 대한 헌법학적 고찰을 중심으로 ―

As play and entertainment determined by coincidence factors (alea) became universal and money has been used for this play, play in which the acquisition or loss of goods by coincidence is accepted as a part of human culture. However, most governance systems that emphasize individual hard work and crave stable social economy management naturally resist to accept gambling as culture and reflect this view in the legal system. However, questions have been raised about whether it is reasonable for individual autonomy to be controlled by national regulations based on governance ethics, especially by criminal regulations. Above all, scholars contend that freedom of play and entertainment should be viewed as a matter of autonomy in the private sector, and accordingly, the right to self-determination should be guaranteed. In this situation, the harm principle presented a theoretical framework that could justify restrictions on freedom in a way that guarantees the right to self-determination within liberalism and prevents the possibility of harm to others. However, even in the case of harm to self, the legal paternalism discussion that state intervention can be justified under certain circumstances also developed within the liberal framework. Using legal paternalism theory, state intervention is justified when harm to self is an involuntary choice of the subject, and furthermore, it is possible to determine the legitimacy of the state's paternalistic intervention by balancing harm and benefits from self-harm. In that respect, regulations on minors or addicted adults who have lost their judgment capacities can be supported by paternalism theory. In addition to criminal regulation, the state's weaker intervention might be justified to prevent unreasonable economic losses or serious addiction problems caused by excessive gambling, and it is necessary to select a less restrictive regulation method that respects individuals' right to self-determination. In a situation where the harms commonly referred to as the harms of gambling appear to occur in connection with or mediated by the circumstances or various conditions around the subject, the regulations preventing such distant harm are likely to be excessive infringement of freedom. Therefore, these regulations require a strict proportionality review under Article 37 (2) of the Constitution, which will eventually be the way to practice practical guarantees of the right to self-determination by constitutionally accepting the discussion of harm principles and legal paternalism.