경제규제제도에 관한 공법적 연구 : 경제특구제도의 법 실증적 분석을 중심으로

Abstract

ABSTRACT A Legal Study on the Economic Regulation System - Focused on the Legal Empitical Analysis to Special Economic District System -

Kim Chae-Hong Advisor : Ph.D. Prof. Kim Choon-Hwan Department Law Graduate School of Chosun University

Under the principle of laissez-faire, there has been the rapid growth of scientific technique and capitalism. Although many people believed that the function of the market can be controlled by invisible hand automatically and it can play an important part in the market, the lack and contradiction of the markget led a market failure. As economic laissez-faire could not ensure social justice and security, the government started to recognize the need of social justice and economic security and to induce active regulation, adjustment and intervention in economic area. These economic regulations have led constantial financial growth, but it also caused many problems such as an increase of a burden in the private sector, a decrease of competitive power and administrational tapism. And as a neo-liberalistic economics has been spread, the revolution of the economic regulations became an important issue. In Korea every new government tried to reduce economic regulations but the outcomes did not meet the public. As Economic Deregulation was not successful and did not get good assessment from the public, the government introduced various Special Economic District Systems. In this artice, Legal Empitical Analysis of Korean Special Economic District System and the direction and the frame of the united method will be presented. Here in Korea, there are “Free Trade Area” in accordance with [Article regarding appointment and operation of free grade], “Free Economic Zone” in accordance with [Article regarding appointment and operation of Free Economic Zone], “Area specialization development zone system” in accordance with [Special article regarding area specialization development zone system], “special R&D area” in accordance with [Article regarding development of special R&D area around the Daedeok and “company town” in accordance with [special law regarding development of company town]. These are introduced to increase domestic and foreign investment and to keep balance between community development and government development. As each of economic affairs introduces these Special Economic District Systems with individual legislative way, this contain many problems such as the contradiction of legislation system, pluralism of a law, the damage of the right of self-government, doubleness of Special Economic District and the excess of governing body. Legistration should be accordance with the basic principle of clearness and universality for users of the law and similiar laws should be simplified through combination. Because each of economic affairs executes these similair Special Economic District Systems with individual legislative way, it would make inverstors who invest into Special Economic District and administrative organizations which execute Special Economic District Systems feel confused. And it also leads the waste of human power, financial power and administrational power. There are some methods to solve these problems. One is to combine similiar Special Economic District Systems and laws into an united law. The ohter one is to add or make up for the weak points in existing laws. But the most effective one is to regulate Special Economic District Systems unitively. Therefore, the basic direction and the main frame of united legistlation of Special Economic District System will be showed here. First, I think the direction for integrating of Special Economic District System laws should be Special Economic District Law by integrating above five underlying articles. In order to do this, the existing five articles should be integrated into one law, Special Economic District should be categorized according to its special quality and certain matters that require discrimination should be established in a distinct legislative form. Second, we should systematize Special Economic District Law by putting it under the program for land development to keep conformity between Special Economic District Law and the program for land development, in order to obey the basic land law which has precedence over Special Economic District System plan. Legistration should be accordance with mutual rank regarding a law, and for this, the frame of the basic plan accordance with a high ranked law should be kept by stating clearly the relationship between Special Economic District System plan and the program for land development in the underlying Special Economic District System. Third, regarding Special Economic District, “Plan Sovereignty” and “the right of self-government” of a Local Administrative Organ should be guaranteed and legislative improvement should be done in order to achieve balanced national development through development which is fit into local administrative organization. A local autonomous entities make a decision about their own region autonomously and execute their laws under their responsibility. The roles between the government and the local autonomous entities should be divided according to the principl of democracy. For this, The rights of legistration and appointment regarding Special Economic District should be given to the head of the central administrative organization and the right of appointment andapplication, the right of approve a plan for developing Special Economic District, thr right of approve a plan for executing, and the right of management should be given to the head of the local administrative organization. Fourth, the appointment of Special Economic District and the development plan have something to do with the interests of the public, so the process of making sure a plan should be regulated firmly to ensure the opportunity of the public and intendance institutionally and to have a legal binding force. If it is done well, it will offer the interested parties the opportunity to propose opinion in advance and give the public the opportunity to participate. Therefore, some processes such as appointment,announcement, inspection, audience, statement and public forum should be regulated to encourage the public to suggest their opinion about their own problems autonomously. Fifth, “Cooperative Discussion System among Related-Organization” should be introduced to achieve the effectiveness of the approval system regulated by the underlying law of Special Economic District System. If the administrative organization would not agree with some matter, there is no agreement among parties, the time limit is exceed and someone enforce the approvement regardless of the exceed time, then this action will be considered as a flawed administrative action because it violates procedural provosions. The government should make a tentative common conference organization with main approval organizations and then operate it some matter intensively for certain time. Sixth, discriminative regulation about domestic company should be done away with to guarante the principle of equity and right of equality within Economic District. The system for foreign investing business is introduced such as tax reduction, financial support and special employment etc but, it contract the investment for domestic company and actually it come under the regulation limiting the enter. Like this, the regulation of the inverse discrimination about domestic company violate constitutional right of equality and is against the priciple of state socialism based on the principle of free markets. Therefore, The inverse discrimination phenomenon should be abolished and the regulation about domestic company should be relaxed in accordance with foreign investing business. Finally, we should combine the Special Economic Distorict system causing the waste of administrative and financial aspects by dispersing and managing special Economic District System into diverse posts. For it, We need to take complementary measures combining Special Economic District Charge Administrative Organization which was installed in each part and the organ of consultation and consideration that possess the legal binding power of the characteristics of administrative organization set up each five special Economic part based on existing Special Economic District System.

Key Words : 경제규제(Economic Regulation) 경제규제 완화(Economic Deregulation) 경제특구제도(Special Economic District System) 법 실증 분석(Legal Empitical Analysis) 경제특별구역법(Special Economic District Law)