ScholarWorks@숙명여자대학교

초록

Contemporary society faces new forms of risks and uncertainties driven by rapid technological innovation in areas such as artificial intelligence, biotechnology, and the platform economy. These technologies complicate ex-ante risk identification and linear regulatory design, thereby revealing the structural limits of traditional command-and-control regulation. Consequently, a new regulatory paradigm is required—one that secures public interest and safety without hindering technological dynamism. In this context, the concept of the Gewährleistungsstaat (enabling or ensuring state) provides a regulatory model in which the state retains ultimate responsibility for public protection while actively utilizing the expertise and autonomy of private actors. Within this framework, public–private collaborative arrangements address societal risks, with private entities engaging in self-regulation or co-regulation and the state ensuring the legality and legitimacy of these regulatory activities. A central premise is that even when regulatory functions are delegated to private actors, the state remains the authority that confers such powers; thus, the delegation and exercise of regulatory authority must be governed by clear legal bases and procedures in accordance with the rule of law. Ensuring compatibility between technological innovation and the protection of public interests requires a legal framework that safeguards predictability, accountability, and non-arbitrariness in regulatory processes. Against this backdrop, regulated self-regulation emerges as a core legislative concept within the Gewährleistungsstaat. By legally defining the division of responsibilities between the state and private actors, the criteria and procedures for private regulatory participation, and the scope of state oversight, regulated self- regulation provides a stable institutional mechanism for cooperative governance. This study adopts the Gewährleistungsstaat as its theoretical foundation to examine the necessity and normative components of regulated self-regulation and to propose legislative directions for designing cooperative regulatory models between the state and private actors.

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