입법예고의 하자와 그 효과 - 행정입법에 관한 입법예고절차를 중심으로 -

Abstract

The Administrative Preannouncement of Legislation (hereinafter “preannouncement”)is to announce the contents of the legislative drafts to the people and to hear their opinions. Preannouncement promotes the participation of citizens in the legislative process,contributes to the better legislation, and consolidates the foundation of ‘the rule of law’. Preannouncement system in Korea is based on the ‘Administrative Procedures Act’ and‘Rule of the Legislative Affairs’ (presidential decree). When the preannouncement is notcarried out according to the law during the rule-making process, what happens to the effectof the rule? When it comes to the statute-making process, the validity of the act cannotbe denied, because the Korean National Assembly (legislative branch) comprises ofrepresentatives of the citizens and legislative process is open to the people and the press. However, rules are made inside the executive branch which has less democratic legitimacythan legislative branch. Rules such as decrees of the president, the prime-minister or theministers need to be made by complying to the strict provisions of ‘Administrative ProcedureAct’. Recently inferior courts have held that rules which had failed to follow the preannouncementprocess were illegal and invalid. It is expected that the legal doctrine on the defects of thepreannouncement process will be developed by courts and scholars.