「부패방지 및 국민권익위원회의 설치와 운영에 관한 법률」제46조에 관한 해석론

Abstract

One of the main objectives of the Act on the Prevention of Corruption and the Establishment and Management of the Anti-Corruption and Civil Rights Commission(that is, APCEMA) is to protect afterhand basic rights and interests of the nation by treating civil grievance petitions. However, how to deter civil grievance petitions, that is, the problem of prevention, is to be counted as one of the main objectives of APCEMA, too. By the way, for the purpose of deterring civil grievance petitions, we should set consistent and clear standards to interpret the article 46 of APCEMA. The more complex and diverse social phenomena administrative agencies, etc should treat, the more the need to apply the article 46 of APCEMA more predictably become with agencies, etc and civil petitioners alike for the purpose of preventing. Accordingly, this paper tried to definitize what "the case civil petitioner's claim is accepted to have a good cause" of the second clause of the article 46 of APCEMA is by illuminating the concept of "unlawfulness" of the first clause of the article 46. To sum up, the first clause of the article 46 of APCEMA expresses "unjustness" apart from "unlawfulness". An unjust administrative act is the act which has lost the social validity for infringement on principle of good faith, etc. As a result, "unlawfulness" of the first clause of the article 46 of APCEMA covers infringement on positive law system alone. Thus, the case the administrative act concerned has unjustness, even if no "unlawfulness", that is, breach of objectively beable highest-degree duty of care imposed by positive law system, will be "the case civil petitioner's claim is accepted to have a good cause" of the second clause of the article 46 of APCEMA. Also, even though the administrative act itself doesn't violate the law and order, including principle of good faith, etc, and thus it is not unjust as well as unlawful, according to some theory, the administrative act is unlawfull in the case it results in infringement on life, body, ownership, etc. Among other things, in connection with interpretation of the article 46, we must take into consideration the main objectives of APCEMA. For these reasons, I'd maintain that such a case should be treated as "the case civil petitioner's claim is accepted to have a good cause" of the second clause of the article 46 of APCEMA.