KLRI : KOREA LEGISLATION RESEARCH INSTITUTE

I. Background and Purpose of Research

▶ Legal problems related to the financial system mean that the legislator's intention contained in the bill does not take effect as intended. The purpose of this study is to contribute to resolving problems related to financial basis regulations found in the current legal system and legal culture. This study uses the current law as its basic scope in terms of time, but includes past laws within the scope of the study to the extent necessary to understand the history of each system. This study aims to analyze current laws and derive the concept of each system as a legal system.

 

Ⅱ. General theory of effect of legal basis for financial support

▶ In order to normatively analyze and review the laws on the basis of financial support, it is necessary to first understand the role and functions of the state as prescribed by the Constitution.

○ In our current legal system, financial support, including financial contributions and subsidies, by the government or the state can be conceptualized differently from the perspective of the Constitution and administrative law. Our Constitution stipulates the economic order in Articles 119 and below. According to this, the state must fundamentally 

respect the freedom and creativity of individuals and businesses in the economic sphere. At the same time, the state can be said to have responsibilities such as balanced growth and stability of the national economy, maintenance of appropriate income distribution, and maintenance of market economic order. These national goals in the economic area under the Constitution are the ‘public interest’ that the state must achieve through economic policies and embody the ‘public welfare’ that serves as a justification for restricting basic rights by law as defined in Article 37, Paragraph 2 of the Constitution. I can understand. Financial support can be used as a means of economic policy to pursue these national goals.

▶ The basis for financial support under the law can be divided into the basis stipulated in general laws and regulations for financial management actions and the basis specified in individual laws and regulations that cause financial actions.

○ In the current legal system, excluding the laws regulating the financial management of local governments, the National Finance Act can be said to be the law that regulates the widest scope of financial management. Among the legal grounds for financial support, the grounds for financial support stipulated in individual laws rather than the grounds stipulated in the general laws of budget and finance, such as budget procedures or regulations on specific types of finance, should be interpreted in consideration of their relationship with general laws.

 Ⅲ. Interpretation theory and legislative model of the basis for statutory contribution

▶ The current National Finance Act separately sets the requirements for the state to perform financial management functions such as contributions through Article 12.

○ In the current legal system, the law that directly regulates the promotion of national research and development projects is the National Research, Development and Innovation Act. The ｢National Finance Act｣ stipulates that the state may make exceptional contributions regarding contributions, and as a requirement, it presents the purpose of carrying out national research and development projects as well as “the operation of institutions that carry out public purposes” as an example of achieving a specific purpose.

▶ In civil law, contribution refers to the act of reducing one's own property and increasing the property of others. The act of appearing is a distinct concept from the act of non-appearance.

○ There are the following differences between contributions under the Civil Act to establish a foundation, contributions to establish government-funded research institutes, etc. under the Act on Establishment, Operation and Development of Government-Funded Research Institutes, etc., and contributions to establish such institutions. do.

▶ In the case where the purpose of the legislation is to donate from public finances the expenses incurred in operating and carrying out affairs of a public institution in the practical sense, that is, a legal entity with decentralized administrative affairs in theory of the Administrative Organization Act, the basis for contribution to the contributing institution under the current legal system is It would be appropriate to legislate by establishing a new.

○ Among the organizations that are designated as targets of donations in various laws, there are quite a few organizations that are controversial as to whether they should be viewed as public organizations in terms of their organizational legal nature or as private organizations, that is, as private entities from the perspective of legal application.

 

Ⅳ. Interpretation theory and legislative model of statutory auxiliary grounds

▶ When an individual law stipulates that the state or local government can subsidize with public finances on the premise of certain expenses, the purpose may mean that a certain portion of the expenses will be borne by public finances on behalf of others, and the subsidy is managed under the current legal system. This may mean that support will be provided by applying the legal system.

○ Grounds for individual financial support If the basis for legal support is divided into support in the substantive sense and support in the formal sense, it is not appropriate to apply the general law of the subsidy system. The discipline of relationships is left entirely to the auxiliary basis of individual laws.

▶ Provided that the standards, procedures, and overall legal relationships set forth in the subsidy system general law apply, matters that must be regulated in the area of individual laws differently from the contents of these general laws should be stipulated in individual laws.

○ In cases where it is intended to legislate the basis of a legal relationship that has the nature of substantive assistance, that is, assistance under the Economic Administration Act, if this relationship is not appropriate for the application of the general law of subsidy systems, all or part of a certain expense may be provided instead of the expression ‘assistance’. It is judged that it is advantageous to maintain the uniformity of the overall subsidy system to express that the state or local government can grant or support.

 

Ⅴ. Comparison of laws based on financial support in major countries

▶ The legal system in which supranational higher-level law, called EU law, affects the domestic laws of member countries is significantly different from that of Korea.

▶ In Germany, the budget plan is also a ‘policy expressed in numbers’ and is an important data that allows us to infer the direction of the country's management based on how much of the budget is invested and for what purpose.

Ⅵ. Conclusion

▶ The proposition that the legislative intent on financial support contained in the entire legal system must be expressed coherently refers to the awareness of the issue regarding the consistency between the legislative intent between the general law on financial management and the individual laws seeking to invest finances, so-called individual business-based laws.

▶ In the current legal system, the grounds for financial support, more precisely, the grounds for accounting for the budget, can be seen as having weak meaning as legal norms.

▶ Although there is a system in place to consider matters related to financial measures in the legislative process, the structure is still difficult to sufficiently consider from a financial institutional perspective.