법률유보와 위임입법에 대한 재평가 - 미국 Delegation Doctrine과의 비교법적 연구를 중심으로 -

Abstract

Article 40 of the Korean constitution declares the National Assembly-centered legislativism prescribing 'legislative power belonging to the National Assembly'. In modern countries, however, as the national legitimacy structure and its character have changed, a national duty has been greatly regarded. In addition, as its function has been complicated and specialized, it has made every thing impossible and inadequate to prescribe only by a law. In such circumstances, delegated legislations are acknowledged in that administrative power can more adequately prescribe the rules about the things in which one should immediately adapt oneself to changes in sophisticated, technical things and conditions. The realistic problems of delegated legislations which are indicated in today's political environment involve limited democracy, infringed national freedom and, ultimately, potentially blocked attainment of legal popular goal by the phenomenon that a legislator of the National Assembly does not prepare any concrete standards for politically sensitive or burdensome things but tries to avoid them through the legislation. The United States has used the standard of a principle of clarity to judge the limitations of delegated legislation. The Supreme Court does not confirm whether the Congress has delegated its legislative power, contrary to a constitutional principle. Rather, it confirms whether the Administration has observed the limitations of delegated legislation in sympathy with the will of the legislature by limiting the range of the legislation through policies and standards. Thus, from the viewpoint of respective independence of the three powers, a principle of clarity becomes a standard for preventing the legislative power of Congress from becoming hallow and the Administration from becoming enlarged. If the Congress cannot delegate essential things through delegated legislation by the medium of Parlamentsvorbehalt, according to the theory of essence, but to limit the possibility of delegating its legislative power by regulating them, necessarily by a law in a formal sense or to decide them by itself, we will have to prevent it from abandoning its own function through hidden delegation by requiring the density of regulation according to it. In case that things are not essential or impossible to prescribe all things in a law by legislatively technical and realistic limitations, we can prevent it from evading its responsibility by requiring it to observe the limitations of delegated legislation derived from the interpretation in Article 75 of the constitution.