「소상공인법」상 손실보상에 대한 공법적 일고찰

Abstract

This paper analyzes and reviews the revision of the 「Small Business Owners Act」, which is called the Self-Employed Loss Compensation Act, from the perspective of public law. To this end, we first analyze the main contents of the loss compensation system of the 「Small Business Owners Act」, which was newly established as a result of the amendment of the law. Next, by comparing this loss compensation system with other similar systems, it was attempted to clarify the meaning and legal character of the compensation system of this legislation. Viewing telegrams for damage caused by the state or local governments as an object of responsibility and as an object of support are completely different in legal nature. If there is legal responsibility for telegram, non-transmissio n causes a problem of non-fulfillment of legal responsibility. Based on this classification, the legal characteristics of the loss compensation system under the 「Small Business Owners Act」 were anal yzed and the characteristics of the compensation systems under the existing laws were compared. Based on this comparison and analysis, the implications of this legislation for the development of public law theory and our legal system were drawn. There is a problem in that the legal nature of this loss compensation system legislation is somewhat vaguely defined between responsibility and support. However, it can be evaluated as a case in which operating profit is legislated as a target for loss compensation by applying the special sacrifice theory. From the point of view of the consistency of the entire legal system, it is possible to point out the limitations of the method of enacting the loss compensation system through individual laws. On the other hand, the loss compensation concept derived by synthesizing loss compensation systems under the positive law may be different from the loss compensation concept under the Constitution. Therefore, in order to maintain the consistency and fairness of future loss compensation legislation, a broader concept of compensation for loss under public law is needed than the theory of property protection.