Overview
Dividing law into public and private law goes back to Roman law. The jurist Ulpian, quoted in the Digest 1.1.1.2, defined public law as that which concerns the state of the Roman commonwealth and private law as that which concerns the interests of individuals. From the late nineteenth century, as the social costs of industrial capitalism became visible, social law emerged between the two, and social welfare law is today described as one of its core fields.
Criteria for distinguishing public and private law
- Interest theory: law protecting the public interest is public law; law protecting private interests is private law. Close to Ulpian, but many rules protect both.
- Subject theory: if the state or a public body is a party, the relation is public; otherwise it is private. It struggles with cases where the state acts like a private party, for example when buying goods.
- Subordination theory: law governing vertical relations of authority and subjection is public; law governing horizontal relations among equals is private.
- Life-relation theory: relations of people as citizens are public; relations of people as private persons are private.
No single criterion is decisive, so several are usually combined. The practical point of the distinction is which procedure applies (administrative or civil litigation) and which legal principles govern. Merryman and Pérez-Perdomo stress how central the distinction is to the civil law tradition.
Classical civil-law principles and their modification
- Absolute property became the social function of property: the use of property must serve the public welfare. Article 153 of the 1919 Weimar Constitution, "property entails obligations", is the classic statement.
- Freedom of contract became fairness of contract: where bargaining power is unequal, as in employment or standard-form contracts, the state limits contract terms.
- Fault liability was supplemented by strict liability: those who create risks, as with industrial accidents or pollution, may be liable without fault.
The rise of social law
Otto von Gierke, in his 1889 Vienna lecture Die soziale Aufgabe des Privatrechts (The Social Task of Private Law), argued that private law must carry social responsibilities and sketched a social field between private and public law. Gustav Radbruch, in "From individualistic to social law" (1930), described a law aimed at the concrete, socially situated person rather than the abstract legal person, cutting across the public-private divide. Social law has three main branches:
- Labour law, correcting the real inequality between workers and employers.
- Economic law, through which the state regulates market order, as in competition and monopoly regulation.
- Social security law, covering social insurance, public assistance and social services. In Korea the Framework Act on Social Security, enacted on 30 December 1995 and in force from 1 July 1996, is the framework statute.
Relation to social welfare law
Social welfare law gives effect to the constitutional right to a life worthy of human beings (Article 34 of the Korean Constitution). Benefit decisions are administrative acts and thus strongly public in character, while contracts for the use of social services also carry private-law elements. Disputes over basic livelihood security benefits, for example, go to administrative appeal and administrative litigation, and the statutes themselves are subject to judicial review.
References
- Ulpianus. Digesta 1.1.1.2. In Mommsen, T., & Krueger, P. (Eds.), Watson, A. (Trans.). (1985). The Digest of Justinian. Philadelphia: University of Pennsylvania Press.
- Gierke, O. (1889). Die soziale Aufgabe des Privatrechts. Berlin: Julius Springer.
- Radbruch, G. (1930). Vom individualistischen zum sozialen Recht. Hanseatische Rechts- und Gerichts-Zeitschrift, 13, Sp. 457–468.
- Merryman, J. H., & Pérez-Perdomo, R. (2007). The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America (3rd ed.). Stanford, CA: Stanford University Press.
- 「사회보장기본법」 (법률 제5134호, 1995. 12. 30. 제정, 1996. 7. 1. 시행).