보충성의 원리에 대한 헌법적 고찰

Abstract

The principle of subsidiarity can be said to be the principle that individuals or other small social function units are given the authority to perform essential functions or fulfill their functions for larger social units and countries. The academic community generally recognizes the principle of subsidiarity as a general principle of constitution. In particular, it is argued that if the state tries to realize the principle of social states, it must abide by the principle of subsidiarity. This study examines whether these general academic views are justified by examining the meaning and function of the principle of subsidiarity, the constitutional status, and the relationship between realization of the principle of social states and the principle of subsidiarity. The principle of subsidiarity does not articulate the conditions for the application of prohibitions and orders relating to the intervention of larger social units and countries, and the concept itself is overly open and indeterminate. In addition, the principle of subsidiarity is likely to be arbitrarily used according to the position claimed due to its double-sidedness. More over, there is no direct constitutional provision to derive the principle of subsidiarity, nor can it be interpreted that the constitutional provisions about economic order, which are mentioned as one of the most important grounds, are consistent with the principle of subsidiarity. There is also several problems in defining the principle of subsidiarity as a marginal principle for the principle of social states. It is difficult to derive from the Constitutional provisions about the economic order and social basic rights, which are important grounds of the principle of social states, that there is a preliminary relationship between the state and other economic entities in achieving a particular economic purpose. In addition, considering the various provisions about social basic rights, the conclusion that the principle of subsidiarity is a constitutional principle that applies directly to the realization of social basic rights by the state or the conclusion that it is possible for the state to guarantee the social basic rights only when there is no possibility of independence by individual ability. The claim that the state can play a role in ensuring social basic rights only when it is confirmed that individual efforts do not achieve sufficient results does not comply with the principle of social states or the principle of subsidiarity.