사회복지행정에 있어 계약화 현상에 관한 공법적 검토 - 한·일 간의 비교법적 검토를 중심으로 -

The expansion of the role of the private sector in contemporary social welfare administration and the consequent reduction of administrative roles have led to various side effects, such as issues of improper benefits distribution and a decline in the quality of welfare services. While current social welfare services aim to ensure the self-determination rights of their users, administrative limitations in the process of service contracting, contract content, and administrative regulation show constraints in terms of control and execution. Therefore, a legal reassessment is necessary to address the changes in the administrative role associated with social welfare service contracts. ① In response to the contractualization trend in social welfare administration, enhancing the financial efficiency of welfare delivery while protecting individuals' self-determination requires a “thorough” regulation by administrative agencies. In other words, the administration should consistently monitor information about those in need of welfare services, the type of services they are receiving, and the appropriateness of the service delivery process. If inadequate welfare services are identified, the administration must exercise its authority to take corrective measures and ensure the protection of the rights of individuals. ② The existing social welfare legislation promotes the formation of collaborative relationships among all individuals and organizations related to welfare to achieve welfare realization corresponding to each local community. The contractualization trend in the social welfare sector does not mean that the state and local governments are relinquishing administrative responsibility. Instead, the administration should establish cooperative relationships with various private organizations and fulfill its public responsibilities in the collaboration between public and private sectors. Therefore, there is a need to redefine the role of administration in response to these collaborations. ③ A reassessment of social welfare service contracts is required. This involves considering a shift from the concept of contractual solidarity between the parties to a “relational contract” that assumes various obligations within social relationships. Additionally, it is essential to prioritize mutual consent from all parties and explore the acceptance of a “consent theory” in explaining the entire contract process. It is anticipated that future social welfare-related legislation will need to formalize specific contract content based on this new contract theory.