경제안보 관련 법률들의 헌법적 근거와 한계

As discussions on economic security have increased recently, new and amended statutory laws, sometimes referred to as the “3 Supply Chain laws”, have been enacted and various measures have been taken internationally on the basis of economic security. Accordingly, this study examines the constitutional bases and restraints of various administrative measures implemented for the purpose of enhancing economic security from a constitutional perspective. It is hoped that this will increase the predictability of various economic security-related laws and contribute to raising the level of economic security-related administration based on constitutional and legal norms. Nations which have strong economic powers are weaponizing economic dependency through “economic statecraft” and thus the norm-based free international trade order is facing a significant challenge. Even without mentioning our constitutional principle of international peace, South Korea is inevitably in a defensive and reactive position regarding economic security, which makes it all the more necessary to have economic security measures that conform to international and domestic laws including the Constitution. In this study, economic security is not defined from a dichotomous “Economy vs. Security” perspective, such as “Security for Economy” or “Economy for Security”. Although it does not explicitly mention economic security, a review of Constitutional articles related to national security shows that our Constitution views economic security as an aspect of national security. Therefore, this study defines economic security as “Security in the Economy” and specifies it as “maintaining the existence of the national economy and guaranteeing the normal operation of the market economy system under the Constitution when a shock factor occurs in the economy related to the movement of products or factors of production”. This definition is consistent with the evolution of the traditional concept of national security, which originally meant maintaining the existence of the state from military threats, into a comprehensive security concept that includes responses to security threats from natural and social disasters, terrorism, and other threats. A similar shift in position can also be seen in the precedents of our Constitutional Court. In our Constitution, the provisions that can serve as the bases for economic security laws include not only those related to the economic order, such as Article 119(2), Article 120, and Article 125, but also Article 76(1), which regulates the President's power to issue emergency financial and economic actions or orders, and basic rights-related provisions like Article 23, Article 34(6) and Article 36(3). In particular, Article 119(2) of the Constitution, which states that the state may regulate and coordinate the economy for the ‘stability’ of the national economy, functions as a comprehensive basis for economic security laws. As domestic and international threats and shocks to the economy increase, state intervention for reasons of economic security is necessary to some extent for the existence of the state and its economy. However, considering that our Constitution is based on the market economic order, reckless and excessive government intervention in the economic sphere must be guarded against. Constitutional benchmarks for these restraints can be found in Article 119(1), Article 23(3), Article 37(2), Article 126 and Article 5(1) of our Constitution. In particular, Article 126 is a constitutional exception to Article 37(2), which stipulates that the essential aspect of citizens’ freedoms and rights shall not be violated, even when restrictions on them are imposed, and thus requires more careful interpretation. I hope to see the emergence of more active follow-up researches that view ‘economic security’ within the broader framework of ‘national security’ while deriving the limitations of state action from diverse perspectives.