사회기반시설의 헌법적 의의와 국가의 책임

Abstract

Since the law was enacted in 1994 to attract private capital, Private Finance Initiative for Social Infrastructure Project has been increasing steadily in Korea. Private investment for Social Infrastructure is resulted from the nation’s fiscal limit with construction and management of the social infrastructure. However, prior to focusing on real needs it must be accompanied by sufficient normative review. In this respect, this paper, from some fundamental sense, aims to find constitutional significance of the Social Infrastructure and constitutional responsibility of the state about it to provide the basis for discussion on Private Finance Initiative for Social Infrastructure. As public goods with characteristics non-rivalry and nonexcludability, Social Infrastructure performs the important public functions, that’s why it is hard to expect the formation of a working market with effective competition and optimal resource allocation. Also, it is essential to use land for construction community-based facilities and if private operators expropriate land it is hard to meet the requirements as a condition of the land expropriation. Furthermore, the supply and distribution of the community-based facilitiesshould be determined after careful consideration for the comprehensive development plan of the country, the benefits and burdens of future generations, and efficient and balanced use of the whole country. Thus, on the Social Infrastructure it is not appropriate to entrust to private operators. Withal, Because most Social Infrastructures are network structure, it is an essential condition for achieving integration to maintain a state as a unity. Social Infrastructure is not only a physical condition for the people to exercise their rights and freedoms guaranteed by the constitution actually, but an essential means to realize balanced elevatation of the quality of life for all citizens, balanced growth of the national economy, balanced utilization of the land of the nation, and social justice all that required by Constitution. In this respect, when Congress make a law on Private Finance Initiative for Social Infrastructure Project, must consider the country's constitutional responsibility for the Social Infrastructure.