행정기본법(안)의 이의신청 조항에 대한 검토 및 향후 법적 과제

Abstract

The formal objection system, both different and spread out within individual law, despite its function to expand the peoples’ protection of rights and strengthen administrative self-regulation has received criticism from various aspects. In particular, while regulating the grounds for formal objection against individual law rulings, as there are no clear positions on the overall appeals proceedings of such formal objections, distinctions made by the administrative appeals office are often ambiguous. Following formal objections it is unclear whether it is possible to file for administrative appeals, as individuals do not choose to make formal objections, the formal objection system is either pointless or the individual filing for formal objections may miss the chance to formally demand the protection of rights as the deadline for an administrative appeal or litigation passes while the formal objection is being processed. This enactment for the Framework Act on Administrative Law aims to resolve the problems and legal confusions of the formal objection system in practice while, regulating the general grounds and procedures for formal objections to promote simple and prompt protection of rights, and defining the relations between the Administrative Appeals Act and the Administration Litigation Act. As such, establishing a new clause regarding formal objections within the Framework Act on Administrative Law is expected to resolve pre-existing systemic confusion and make sizeable contributions in the aspect of peoples’ protection of rights. On the other hand, for the formal objection system to be implemented readily, various legislative improvements and additional legal research is deemed necessary. For those reasons, this paper aims to review the following legal challenges. First, the need for legislative improvement measures to make cross-act associations feasible thus creating advanced appeals proceedings in regards to Administrative Procedures Act, Administrative Trials Act, and Administration Litigation Act. Second, to make clear the application scope of the clause for formal objection in the Framework Act on Administrative Law, articles 3 and article 4 of Administrative Trial Act recognizing special cases of administrative trials must be clearly interpreted to allow for the relationship between Administrative Trial Act and formal objections to take shape. Finally, there is a need to determine whether clauses of formal objection in individual law must be preserved, amended, or erased after taking to consideration whether after enacting the Framework Act on Administrative Law accounts for the purpose of originally implementing the clause of formal objections in the individual law.