적극행정 제도에 대한 공법적 일고찰

Abstract

The active administrative exemption system is in effect based on the current regulations under the 「Audit Service Act」 and 「National Public Officials Act」. This system represents the ultimate purpose of administrative change. However, from the point of view of public law, there is a limit to the active administration system to drive administrative change. First, this system is applied to legal relations within the administration. The responsibility for audit under the 「Auditors Act」 and the disciplinary responsibility under the 「National Public Officials Act」 are mere internal responsibilities of administrative agencies or public officials. In order for the administration to change in the direction of the concept of active administration, there must be room for positive administration to be recognized in the legal evaluation of the external relations of the administration. This can be said to be a question of how to select the law to be applied to the legal relationship established by the administration and how to interpret and apply this law. The former is taken up as a matter of the court theory of administrative law, and the latter is taken up as a question of administrative law interpretation. It can be said that the expectation of changes in the administration itself with the current active administration system is a confusion between the internal and external relations of the administration. In order for public officials to be free from personal responsibility issues and to pursue the public interest, it is necessary to develop a law that separates the responsibilities that belong to the administration and those that belong to individual public officials. From this point of view, the current 「National Compensation Act」 faces the problem of not distinguishing between the actions of public officials and those of the administration. Accordingly, there is a problem in that when a public official performs a task with a conviction, even if the audit responsibility and disciplinary responsibility are exempted by the active administrative immunity system, they can be held liable for compensation.