독립행정기관의 설치와 헌법상의 규율―「고위공직자범죄수사처 설치 및 운영에 관한 법률위헌확인[2021. 1. 28. 2020헌마264‧681(병합)]」 사건을 소재로 하여―

Abstract

This paper, based on the constitutional decision(2020Hun-Ma264 ․681) about the Corruption Investigation Office for High-ranking Officials (hereinafter referred to as the “Investigation Office”), is to analyze how the constitutional regulation works on the construction of a independent administrative agency. In this decision, the Court opinion hold that the “Investigation Office” is constitutional because it is not prohibited in light of interpretation on the Korean Constitution. And it also said the construction of the “Investigation Office” does not deny the principle of division of powers. On the contrary, the opposition opinion argued that the "Investigation Office" does deny the principle because we cannot say where it belongs among the legislative power(Constitution Article 40), judicial power(Constitution Article 101) and administrative power (Constitution Article 66). And it also said that the business of the “Investigation Office” is incompatible with that of a prosecutor guaranteed in Constitution and laws. This paper agree to the Court opinion that the “Investigation Office” is constitutional but the logic it employs is not acceptable. And opposition opinion also has the same logical problem. The main reason two opinions are based on the false theories is that they don’t understand the concept of Executive power(Constitution Article 66(4)) fully. The concept is different from that of the administration employed in the Administrative Text Book. It means not an administrative agency’s activities but ‘government power’ executed by a President. Based on the concept, we can theorise the constitutional regulation on the independent administrative agency in two categories as follows; the first is the principle of division of powers and the second is the principle of construction of administrative organization law. At first, let’s think about it based on the principle of division of powers. In this context, he principle of division of powers means that any power among them should not infringe on other’s essential power, that is, the legislation power to enact a law, the judicial power to judge all legal disputes and litigations and to issue a warrant, and the president’s government power guaranteed in the Constitution. According to this theory, the construction of the "Investigation Office" is constructional because it dose not infringe on any essential powers of them. Secondly, let’s think about it based on the principle of construction of administrative organization law. It is made up of ① the principle of assignment, ② the principle of supervision and adjustment and ③ the principle of responsibility. From the point of view, the principle ① means that one administrative agency should not infringe on another’s power guaranteed in the constitution. And the principles ②③ can be thought to be satisfied with as long as national administrative affairs are dealt with by the Executive Ministries under the direction of The Prime Minister(Constitution Article 87(2)). From this point of view, we can conclude that the construction of the “Investigation Office” is constructional, because the business of the “Investigation Office” dose not infringe on the right of arraignment and the principles②③the “Investigation Office” to work well with the cooperation of legislation power, judicial power and executive power.