행정입법에 대한 국회 관여의 근거와 한계

Abstract

The present paper investigates the bills to enhance parliamentary control of administrative legislation proposed in the 20th Assembly and seeks appropriate measures to set up a cooperative system between the National Assembly and the Executive in the field of legislation. Direct parliamentary control of administrative legislation is derived from the obligation of the Executive to send administrative legislation to the National Assembly introduced in 1997, which has been changed into parliamentary examination of the Presidential Decrees and the Ordinances of the Prime Minister and the Ordinances of the Ministries in 2000. Consideration on whether the National Assembly may actively demand for revision, modification, or change of administrative legislation has to be based on the constitutional principles, such as the separation of powers, and the identity of administrative legislation. Although administrative legislation is secondary source of laws based on parliamentary legislation and its limitation is variable depending on the scope of delegation thereof, it retains inherent identity. The Executive has the right to enact supplementary norms for parliamentary legislation in its delegated scope or as a way of enforcing it. The legislative branch, the executive branch, and the judicial branch shall not permitted to take direct charge of the affairs which belong to the others respectively beyond the constitutional principle of checks and balances. The right to demand for revision, modification, or change of administrative legislation may encroach on the right of the Executive since it is the same as the National Assembly makes administrative regulations directly. For example, contents of a Presidential Decree will be changed according to the result of parliamentary examination. In addition, it may encroach the authority of judicial review by establishing a new type of control which is not provided for under the Constitution. It also causes problems of evading a legislative procedure including presidential veto. It is necessary to establish a firm cooperative relationship for legislative efficiency and legality between the National Assembly and the Executive away from surveillance and strict control in order to realize the principles of democracy and rule of law.