위임입법의 한계와 법령정비기준

Abstract

This article examines the limitation of delegated legislation under the provisions of Article75 and Article 95 of the Constitution of the Republic of Korea and intended to consider roomfor legislation innovation. It is practically impossible to formulate all policies solely by theLegislature and the same can be said of legislation as policy means. Article 75 and Article95 of the Constitution work as a legal basis and limitation of administrative legislation whichis introduced as a legal form therein. In particular, principle of non-blanket-delegationcalling for “delegat[ion] with the scope specifically defined”(Article 75) may be regardedas a command of an instruction to the Legislature(the National Assembly) making Actscontaining a basis of delegation to administrative legislation. The Executive branch which has a responsibility to enforce Acts enacted by theLegislature should establish rules and regulations even if a provision thereof is unclear orambiguous. And then a clear and specific legal basis should be made in an Act throughlegislation innovation. In addition, two step test in accordance with the Chevron deference(1st step: De novoreview, 2nd step: reasonableness review) hold by the U.S. Supreme Court can be referredto as main standard of judicial review in order to check legality and justification ofadministrative legislation. Particularly, the 2nd step review of the Chevron test will beuseful to make delegated regulation if a provision of an Act is unclear or ambiguous; orgeneral empowerment clause is prescribed. According to Supreme Court of Korea and Constitutional Court of Korea, the concretenessand clarity of a certain provision shall be determined organically and systematically bycomprehensive view on the whole provisions of related laws, not by the provision only. Thatis, it is sufficient for anyone can predict contents of a subordinate provision roughly in viewof ground provision(s) of delegation in a parent law. Delegationto the Presidential Decree, the Ordinance of the Prime Minister, the Ordinance of theExecutive Ministry is a principle of the Constitution. Furthermore, Delegation to theadministrative rules is also allowed. Provisions without legality or justification, e. g. a provision changing substantive contentsof parent law without legal basis therein, a provision deviating from delegation range, aprovision contradictory to the purpose of parent law, and a provision in conflict withcontents of parent law, should be improved. A parent law may be revised in order to setup a basis of delegation to a subordinate statute if it is necessary to maintain the policysystem of the subordinate statute.