현재 진행형으로서 코로나에 따른 영업제한 손실보상 -손실보상의 시기별 사각지대를 중심으로

Abstract

It has been nearly two years since the COVID-19 pandemic was declared. In the meantime, damages to life, body and economic losses caused by COVID-19 have increased. In particular, small business have endured pain and losses from business restrictions to protect the public health. The threshold for relying on their voluntary favors has already exceeded. We now have the Act on the Protection of and Support for Micro Enterprises(hereinafter referred to as the “the Small Business Act”) to compensate for the losses caused by business restrictions(hereinafter referred to as “COVID Business Restrictions”). Although the compensation scheme for COVID Business Restrictions was introduced under the Small Business Act, blind spots of compensation exist by period. No compensation is made for losses prior to July 7, 2021, and some business restrictions and operations are excluded from the compensation scheme. In particular, the problem of compensation for losses before July 7, 2021 has a complex structure in which the Infectious Disease Control and Prevention Act(hereinafter referred to as the “the Infectious Disease Act”) and the Small Business Act can overlap. This article focused on whether these blind spots can be filled with a methodology for applying analogies. Even before the Small Business Act was revised, it was considered that the compensation scheme of the Infectious Disease Act could be applied by analogy to the COVID Business Restrictions, given the purpose and content, and the similarity to targets listed in the compensation scheme of the Infectious Disease Act. The application of the compensation scheme under the Small Business Act may also be permitted. The nature of the COVID Business Restrictions couldn't be said to be essentially distinguished based on before and after July 7, 2021. It is confirmed that government’s assistant for losses prior to July 7, 2021 under the proviso to Article 2 of the Addenda of the Small Business Act can be interpreted for accommodative compensation, and it is deemed possible to allow compensation according to the Article 12-2 of the Small Business Act. The COVID Business Restrictions have continued since COVID-19 pandemic. The cause of loss compensation spans around July 7, 2021, and artificially dividing the time of loss to discriminate against the loss compensation coverage does not fit for the compensation system due to the close linkage of the cause and effect. Legislation of the Small Business Act was implemented as a reflective measure against defects in the loss compensation regulations for the COVID Business Restrictions. The COVID Business Restrictions can cause special sacrifices to property rights. In particular, regardless of full compensation for COVID-19, the standard of compensation for COVID-19 is established under the Small Business Act. In a situation where the analogy between the Infectious Disease Act and the Small Business Act is allowed overlappingly, it is desirable to apply or infer the Small Business Act to the COVID Business Restrictions.