영유아보육법에 관한 연혁적 고찰 - 법의 성격과 법체계의 관점에서 -

Abstract

This study reviews the history of the Infant and Child Care Act from the perspectiveof the law to provide the foundation for the understanding of the concept or characteristic of the Act, defining its relationship with other laws and systemizing various regulations within the Act. For the purpose, this paper includes the study on the Infant and Child Care Act, the Social Welfare Services Act, the Framework Act on Social Security, and the Constitution Law. The concept of the infant and child care began as a relief found in the Chosun Relief Order at first in 1944. The concept has been further defined as the selective nurturing in the Child Welfare Act in 1962, then as the generalized educational care in the Promotion Act of Early Childhood Education in 1982, then as the limited care in the use of nursery facilities according to the Infant and Child Care Act in 1991, and then as the generalized care in the use of nursery facilities according to the Infant and Child Care Act in 2005. Finally, the Infant and Child Care Act published in 2009 further expands the concept of the infant and child care as follows. The concept of care defined by the Infant and Child Care Act can be regarded as the social welfare service under the Social Welfare Services Act and the Framework Act of the Social Security. Furthermore, this Infant and Child Care Act establishes the following relationships in the legal system：the 34th article of the Constitution as its most fundamental basis, then the Framework Act of the Social Security as its higher-level law and then the Social Welfare Services Act as its sui generis. However, there is a possibility that the Infant and Child Care Act can violate the 31st article of the Constitution. The Infant and Child Care Act puts emphasis on the education as an important aspect of the care. On the contrary, the Infant and Child Care Act does not include protections for the pursuit of right in education and the institutional guarantee while the 31st article of the Constitution guarantees both of them. Also, the Infant and Child Care Act should have been registered under the Education Law instead of the Social Welfare Services Act or Social Security.