Gewährleistungsstaat und Regulierungsreform in Deutschland: From deregulation to smart regulation

서지정보

· 발행기관 : 이화여자대학교 법학연구소
· 수록지 정보 : 법학논집 / 19권 / 4호 / 81 ~ 124페이지
· 저자명 : JanZiekow

초록

The idea that there are too many regulations excessively restricting the economic freedom of enterprises and citizens is widespread in Germany. Yet empirical evidence supporting this perception does not exist, even from a relative perspective as compared to other countries.
Ⅰ. The guarantor state's comprehension of regulation In Germany, as in many states, there have been intensive debates about the changing role of the government over the last 20 years. The concept of the guarantor state is based on the insight that the state does not have a monopoly on the right to formulate and implement policies on public interest issues but rather that this requires the cooperation of government and private actors. The major objective therein is the sound division of roles for the successful fulfillment of public tasks. The guarantor state’s role is thus to choose the mode of regulation that best enables the public interest to be realized as effectively and efficiently as possible while at the same time minimizing the direct and indirect burdens that arise from the regulation. It is assumed that these objectives can best be achieved through the adoption and use of a model of cooperative regulation.
The linking function of the model of regulated self-regulation consists of the combination of private and government rationalities in order to achieve an overarching objective, in which the government will take over the responsibility for delivery and designs its role accordingly.
Ⅱ. The development of regulatory reform in Germany and the guarantor state The development of the regulatory reform agenda in Germany is characterized by several approaches, which should not be understood as alternatives but which complements capable of enhancing each other.
Deregulation: In both the federation (the German state as a whole) as well as in the federal states (the Länder) numerous regulations with too prescriptive impact on economic development have been nullified following the reports of deregulation commissions. In addition, regular legal adjustments are made to purge obsolete or redundant regulations. In this way, between the years 2003 and 2009 more than 1,000 laws and acts were done away with.
Regulated self-regulation: Due to the need to secure the public interest, many regulations cannot be waived without providing an alternative. In these cases, the model of self-regulation can be implemented, by which solutions to public interest issues are provided by private standards and market-based approaches to decision-making in line with the public good. Consequently, the responsibility for delivery remains with the government, which shall interfere actively in all cases where entrepreneurial self-regulation methods do not function adequately.
Quality of regulation: The importance that the regulatory mode of regulated self-regulation has gained in the regulatory reform agenda makes clear that the critical issue is not only whether a regulation is necessary or can be omitted or waived, but rather the quality of a regulation. Addressing quality issues requires a complex mix of instruments, of which the essential elements are legal impact assessments, especially of bureaucratic and compliance costs, sunset-legislation clauses, evaluation, and experimentation clauses.
Ⅲ. Structures and the future of the regulatory reform in Germany Summarizing regulatory reform in Germany over the last 25 years, it can be said that regulatory reform is not a single act but a complex system, one which is subject to continuous development and in a permanent state of implementation. This system consists of quantitative and qualitative elements, which correspond closely to the concept for European law that the European commission calls “Smart Regulation.” Based on this, in 2014 the German federal government passed two resolutions that laid down the agenda for regulatory reform in the coming years. The approach of this new program focuses primarily on the quality of the regulations in order to minimize the resulting burdens for companies and citizens.

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