사회복지사업법 제1조의2(기본이념)의 법해석학적 분석과 입법론적 개선방안

The Social Welfare Services Act is a body of legal norms that stipulate the basic matters related to social welfare services, and is a law that seeks to specify the principles of the welfare state pursued by the Constitution. Therefore, the nature of the Social Welfare Services Act should be understood from a constitutional perspective. In addition, the purpose of the Social Welfare Services Act is to strengthen the realization of basic social rights. Considering this legislative intent, it is reasonable to understand the nature of the Social Welfare Services Act as a field of social law. However, the Social Welfare Services Act shows inconsistency and logical flaws in the connection between Article 1 (Purpose) and Article 1-2 (Basic Ideology) in the legal system. In other words, the titles of ‘Purpose’ in Article 1 and ‘Basic Ideology’ in Article 1-2 are not in harmony. When analyzed from a legal interpretation perspective, the direction pursued by the purpose and ideology are the same. Therefore, ‘Basic Ideology’ in Article 1-2 contains a meaning that overlaps with ‘Purpose’, which is an error in legislative technique. Therefore, it is desirable to change the title of Article 1-2 to a term that matches the content of the text. In addition, it is reasonable in terms of the application of law (effect) to legislate a provision that strengthens the realization of social basic rights by reflecting the direction pursued by the Social Welfare Services Act and the legislative intent of Article 1-2 (Basic Ideology) by newly establishing the latter part of the text of Article 1 (Purpose). For example, it is reasonable to consider a plan to legislate that “Social welfare services pursue the principle of publicness and public interest” by newly establishing the latter part of the text of Article 1 (Purpose). In accordance with this newly establishing the latter part of the text of Article 1 (Purpose), it is reasonable in terms of the connection and application of law (effect) to change the title of Article 1-2 to “Social Welfare Rights and Publicness.” And since the provisions of Article 1-2 of the main text stipulate the social welfare service right corresponding to the social welfare right, the right to choose social welfare services, and securing the public nature of the subject implementing social welfare projects, it is logically reasonable to change the title to one that complies with the provisions of the main text as presented above. If this legislative theory is followed, the purpose and ideology of the Social Welfare Services Act will become clear, and the standards and direction of social welfare projects pursued by the state will also be clearly established. In addition, in terms of the application of laws (effects) related to social welfare projects, the standards of the pursuit of public interest and the principles of public nature will be clearly established.