「행정기본법」의 제정과정과 주요내용

Abstract

Although administrative statutes or regulations account for more than 90% of about 5,000 ones, there has been no general Act that stipulates the principles and general matters regarding administration. As a result, the administrative law system has been complicated, such as identical or similar matters being prescribed differently by individual statutes, which often damaged the predictability and legal stability of administration by causing confusion not only for the people but also for public officials. Thus, 「General Act On Public Administration」, the purpose of which is to ensure democracy in and legality of administration and to enhance the appropriateness and efficiency thereof by prescribing principles and general matters regarding administration, thereby contributing to the protection of the rights and interests of citizens(Article 1), was enacted and promulgated on March 23, 2021. However, few other countries have legislative precedents that stipulate these contents. Therefore, 「General Act On Public Administration」 was created in accordance with the unique legislative model of Korea, and it is the result of integrating the capabilities and experiences of the Korean administrative law academia and administrative practice. In view of functioning as general provisions of administrative law while maintaining system consistency with individual Acts, the name “「General Act On Public Administration」” was adopted in consideration of the extendability of incorporating individual Acts into a single Act. The main contents of 「General Act On Public Administration」 are as follows. Chapter 1 provides purpose, definitions, calculation of period for administration, and Chapter 2 on legal principles of administration provides principle of rule of law in administration, principle of equality, principle of proportionality, duty of good faith and principle of prohibition of abuse of authority. Chapter 3, administrative action, specifies dispositions(standards for application of law, effects of dispositions, grounds for disqualification, subordinate clauses, revocation of illegal or unjust dispositions, withdrawal of legitimate dispositions, automatic dispositions, standards of exercising discretion, standards for sanctions and limitation period for sanctions), deemed authorization or permission, contracts under public law, penalty surcharges, administrative compulsion, other administrative actions(effects of reports depending on acceptance, fees and usage fees), raising of objections to disposition and reexamination. Chapter 4 on legislative activities, etc. of administration stipulates legislative activities of administration, improvement of administrative legislation, interpretation of statutes or regulations. On the other hand, 「General Act On Public Administration」 will be revised to newly add administrative plans, publication of violations, and guaranteed, etc. that were discussed during the development of 「General Act On Public Administration」. 「General Act On Public Administration」 is preferentially enacted only those that formed consensus on the matters established by theories and precedents between the government, academia, and legal profession. Therefore, it is necessary to do research and review the contents that will be further complemented and improved in terms of the protection of the rights and interests of citizens or administrative innovation. In particular, legislative efforts are needed to integrate with 「the Administrative Procedure Act」 to become a general theory of administrative law worthy of its name.