공적 조직의 준재정활동(quasi-fiscal activities)에 대한 재정법적 검토 -중앙은행과 공기업의 준재정활동에 관하여-

Abstract

The scope of state action is expanding extremely broadly these days. As the fiscal burden of the nation is increasing, the government is attempting to conduct circuitous fiscal activities through non-governmental agents to avoid immediate financial burden. The activities performed by non-governmental agents are called quasi-fiscal activities. The agents mostly discussed relating to quasi-fiscal activities are public enterprises and the central bank. One major issue of quasi-fiscal activities pointed out is the lack of democratic control on governmental activities accompanying finance, evasion of fiscal acts, and underestimation of fiscal deficit. However, despite such issues of quasi-fiscal activities, it is not an exaggeration to say that no legal research on quasi-fiscal activities has been performed in areas of central bank Act or public enterprise Acts of Korea. The major constitutional basis for quasi-fiscal activities is the regulation and adjustment on national economic activities designated in Clause 2 of Article 119. Central bank and public enterprises have their own individual legal basis. First, regarding central bank, although the independent establishment of monetary policies and enforcement power is guaranteed by the Bank of Korea Act, it also has an aspect of quasi-fiscal activities, such as reversion of earned surplus savings into the national treasury and acquisition of national debt under the Act. Regarding public enterprises, the Korea Electric Power Corporation Act, Korea Gas Corporation Act, Korea Land & Housing Corporation Act, and Korea Water Resources Corporation Act all regulate relatively broad work scopes, and some include works that must be performed as governmental fiscal activities or that practically allow the government to relatively freely perform fiscal activities depending on the interpretation of these acts. Moreover, each individual act has a legal basis allowing to perform tasks entrusted by the government, which shows no issue in the legal form, however, because cost preservation fails to correspond to such activities in reality, it is in fact quasi-fiscal activities that are being performed. Clearly distinguishing between fiscal activities performed based on fiscal acts and performed quasi-fiscal activities that are not based on such legal basis is extremely difficult. For central banks of major countries, liquidity is supplied through activities of purchasing assets in the financial market or by infinitely purchasing national debt for the stability of the financial market after the global financial crisis. Although this is out of the ordinary work scope of central bank, it is difficult to regard it as a fiscal activity that must be performed through finance. This is because its function overlaps with ultimate role of central bank as the Lender of Last Resort(LOLR). Therefore, there is the room for controversy, and some controversies are continuing. The quasi-fiscal activities of public enterprises mostly appear in large-scale national policy business and price approval by the government for public enterprises. The performance of large-scale national policy business with political and policy purposes without considering the business value and supply of public service in a cost below the production cost which is performed without any corresponding financial subsidy has the problem of deteriorating management situations of public enterprises that also possess the characteristics of a corporation. Thus, there is a need to determine what exactly the fiscal activities are. The following four are criteria to use for such determination. First, the purpose of establishment acts as the basis of implementing business, second, relation to fundamental rights and survival considerations,third, continuity of business performance, and fourth, generation of profit and its method. These criteria can also be applied to issues of local public enterprises established by local governments. When the activities performed by non-governmental agents strongly have the qualities of fiscal activities, the fiscal burden pertaining to such must be attained. Moreover, when such burden forms fiscal deficit, it shall be announced in official materials, and democratic control must be exercised not only in the procedure, but also in the result. This research will hopefully become a basis for legal research on quasi-fiscal activities in the future,especially contributing to the external extension of legal research on the role and effect of public enterprises.