시장질서의 헌법적 의미와 구체화 방향

Abstract

Market is an object which should be institutionalized according to the constitution. The constitution may contain unbiased ideologies rather than a biased ideology. The constitution guarantees liberty and equality for all that should be realized practically in real life. The economic life of all which is assured and fulfilled in the constitution could be realized not only by market manner but also by non-market manner. Furthermore, non-economic life which is closely related to economic life is important for all aspects of life, and economic life as well as non-economic life could not be understood to be realized only by market manner. In the thread like these, if market manner applies to the domain of non-market manner, human's life will not be realized properly, and it will be connected to the distortion of constitutional order by so-called market-capitalism. Even though we could concede the competition as nature of market, if the competition is applied to beyond the market, the diversity and intrinsic value of other life would be ignored or infringed. The "market order" is norms concerned with a part of economic life managed by market manner. It is not only a private transactions order, but also a public order in relation to the realization of community value. Through the market order as a public order, the autonomy of economic subject may be limited partially, but it aims for, after all, economic freedom and equality per se for all. The constitution stipulates "the prevention from the domination of market" and "the prevention from abuse of economic power in market", and it aims for the "democracy in market" that means the promotion of harmony between economy and other value of the constitution through establishing of rational market orders. The materialization of market orders includes the establishing of individual market-related institutions. Each market-related institution should be arranged rationally considering de facto characteristics of each market, necessity of regulation, national economic situation etc. The role of legislator regarding the establishment of individual market-related institutions is the formation of the legal basis sharing with difficulties of legislation in relation with economy. The limitation of the role of legislator has to be redeemed by the role of government which is justified by the constitution.