COVID-19 시국에서 행해진 집합금지명령과 헌법상 보상의무

Abstract

Today, in the face of the COVID-19 outbreak, the government is widely implementing an administrative act banning gatherings to prevent transmission of the virus. These actions are taken in the public interest, but at the same time, they are causing grievous economic damage to private business owners, who are virtually being forced to shut down their businesses. However, the Infectious Disease Prevention and Management Act contains only a provision giving the state the authority for the administrative act, but no provisions ordering the state to compensate for resulting losses, which is problematic. The state's compensation for losses resulting from the administrative act may be understood as discretionary, but if compensation for losses falls under a constitutional obligation, the state must establish provisions for compensation. Therefore, it is critical to determine whether the state's obligation to compensate for losses is derived from the constitution. And in order to review the 'obligation to compensate' rather than simply establish whether the administrative act is unconstitutional, a detailed review is essential, with respect to property rights above all else. Predicated by this recognition, this article examines whether the suspension of businesses by the administrative act can be interpreted as the restriction of constitutional property rights, and if so, whether the obligation to compensate for resultant losses is derived from the constitution. It also attempts to find out an appropriate theoretical structure of the obligation, analyzing attitudes of Constitutional Court decisions and reviewing theoretical issues in the process. The article concludes with a simple suggestion related to legislation after reviewing countermeasures or remedies for private business owners from a realistic perspective at judicial and legislative levels.