보장국가에 있어서 지방자치단체의 역무와 책임

The Roles and Responsibilities of Local governments in the Guarantor State

Due to globalization based on rapid development of information and communication technologies, government’s tasks were far more departmentalized and specialized. The government eventually reached the limit of its ability and finance, which is so-called Government Failure. To overcome its ineffective task performance, what had been considered government affairs were gradually privatized. However, turning over government affairs to individuals persuing their interest led to another problem that public task performance was failed, which is so-called Market Failure. Facing the government and market failure, there has been active discussion about“the guarantor state”(Gewährleistungsstaat, 보장국가) in foreign literature. The guarantor state departs from the traditional constitutional state in terms of relationship between government and society. It represents a new role of government; It doesn’t carry out public affairs by itself, it provides competent individuals with public affairs respecting their autonomy, it still fulfills public interest. Recent accidents like Se-Wol Ferry, humidifier germicide, platform screen door in Goo-Eu, explosion on Namyangju subway were typical disasters resulting from contracting-out. These accidents shows government and local authority shouldn’t shift their responsibility on private sector just because they delegate public affairs to it. The government and local authorities should have responsibility to help private sectors not only perform public affairs but also protect fundamental rights and welfare of people, which is “the guaranteed responsibility” (Gewährleistungsverantwortung, 보장책임) of “the guarantor state”. To carry out properly responsibility of the guarantor state in a society where technology develops rapidly and modern type risks emerge, the government needs to shift from the former prescriptive system. It is also critical to guarantee autonomy of the local authority and to establish cooperation system between the government and local authority. In the era of the guarantor state, the government, local authorities and private sectors are partners fulfilling public interest. It is, therefore, important for the government to break away from its traditional system and to give its active support to local authorities and private sectors for restoring their autonomy. It’s also needed to have a new law system which can completely and officially support their autonomy. It should be stated that the local authorities are main agents together with government of working for the public good and that their autonomy is to be guaranteed in the constitution. The legislation also should be prepared to strengthen autonomy and capability in each area and to raise abilities of self-regulation of local authorities. In other words, the government needs to move in the direction of its control depending not on rationality but on constitutionality. For government, cooperation with private sectors is essential as well as cooperation with public sectors. The local authority, because of its limited resources, faces difficulties when carrying out public affairs. The government therefore tries to improve welfare of its people and expand infrastructure through public-private cooperation such as contracting-out and private investment. However, the expansion of their cooperation causes several serious problems; Corruption when selecting private business operator, lack of validity verification including demand forecast in contract stage, difficulty of gaining efficiency as to carrying out a contract, lack of government’s capacity to manage private sectors and investment. The problems mentioned above lowered the quality of public service and even put a big financial burden on local government. It is therefore necessary to establish its “regulative system for guaranteeing responsibility” the guarantor state to minimize the side effects. It’s time for local government to have a role