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The Review on the Harmony between Market Autonomie and Public Regulation in Electronic Trade - The New Relationship between Public Law and Private Law -

  • Public Land Law Review
  • Abbr : KPLLR
  • 2016, 74(), pp.181-206
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Sung Bong Geun 1

1고려대학교

Accredited

ABSTRACT

Now we are experiencing the New Era in which so many trade and exchange of goods including real estate by electronic methods in cyber space. We can call this society ‘the Information Society’ or ‘the Digital Society’. At the same time ‘E-Government’ is working in this society. But because of splendid and huge progress of electronic Market and Technique, State and Provinces cannot solve many problems in this change of Era without Help of Private Sector. We cannot adhere to traditional administrative Paradigm and Government’s hard Regulation any more because of already and enough experience of ‘Government’s Failure.’ But also we cannot rely on ‘Neoliberalism’ and ‘NPM’ because of ‘Market Failure’. So now we need to get the Revolutionary Paradigm so that harmonize the Market’s Autonomie and Public Regulation. I propose and suggest ‘Steering State’ which can implement successfully ‘Ensuring State’ or "Guarantee State’. In this model, State respect Market Autonomie at first, so keep the wide distance with Market and prefer Self-Regulation in Market. The Structure and Relationship between Market and Government is that Public Relationship and Public Sector embrace the Private Relation and Sector so that Market and Private sector work automatically very well. So State should keep the distance with Market watching and monitering Market. Even if Market works very well automatically, Steering State is prohibited to do nothing and abandon to hold Steering Handle. When the Function of Market is in danger, at that time Steering State should have narrow distance and intervene and steer the Market with proper and soft Methods. Like this way, Steering State handle and steer and control the Market considering Market’s Character and Style, the Degree of Danger in Market, proper Distance with Market etc. If we want to make Steering State more effectively work even in electronic Market, we’d better to ‘network’ very well among State and Market, Individual, Enterprise, International Groups with each other. In addition to ‘Networking’, we also need various PPP (Public Private Partnership). Especially we’d better to use combination of Self-Regulation and Government’s Regulation considering distance between Market and Public Power. So we need to choose soft Self-Regulation in Internet Market primarily. But Secondary we can use strong Government’s regulation only when Market Autonomie has significant problems and is in danger. We’d better revise and correct many Laws including Constitution in this direction of Steering State continuously for example as we see in German Constitution Article 87 e and Article 91 c. And we’d better to classify and divide laws into General Law and Individual Law. So We need to declare Steering State which keeps proper distance with Market including electronic market in these General Law. At the same time we’d better to give and take feed-back between General Law and Individual Law.

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