자율규제의 법리적 구성에 관한 연구 - 일반행정법의 관점에서 -

Abstract

From a fundamental point of view, it is necessary to understand the concept of self-regulation as the epitome of governance required in this era. In this respect, the concept of self-regulation needs to be carefully defined. It is because we have to put the values ​​that our community is aiming for. First, self-regulation uses ‘autonomy’ as a conceptual sign. Non-interference and subjectivity implied by autonomy correspond to the view of human beings (dignified, free and autonomous human beings) of our Constitution. However, there is a limit that autonomy can be buried in collective interests, and this problem must be overcome in order to go beyond simple autonomy and fall under the concept of self-regulation. Second, self-regulation uses republican ‘solidarity’ as a conceptual sign. Self-regulation, as a part of government, must have that much publicity to be given its legitimacy. To this end, the value of solidarity that goes beyond the promotion of collective interests and advances to the promotion of public welfare is required. Third, since autonomy is a conceptual counterpart of heteronomy and autonomy that does not presuppose heteronomy is not logically possible, 'partnership', which refers to the relationship that autonomy establishes with heteronomy, becomes a conceptual mark of self-regulation. However, public-private partnerships do not always equate to self-regulation. Fourth, in that self-regulation is to be understood in the context of government, constitutional ‘restraint’ is a conceptual marker. As history has developed in the direction that state powers restrain their own powers, non-state powers are rightly requested to refrain from their powers. From this point of view, self-regulation is an unavoidable duty inherent in non-state powers. The concept of self-regulation is not heuristic but dogmatic and should have practicality at the level of general administrative law. First, in terms of the administrative procedure law, self-regulation requires a fundamental change in the structure of administrative action centered on rule making and administrative decision. The development of the legal theory on administrative contracts is urgent, and attention is needed on the so-called informal administrative action discussed in Germany. Second, in terms of the administrative remedy law, self-regulation requires a fundamental change in the structure of administrative litigation centered on appeal litigation. Third, in terms of the administrative organization law, self-regulation requires fundamental improvement in the legal system and principles related to the delegation of administrative authority. With the current system of command and control, it is difficult to realize the ideal of self-regulation. Only when the state can recognize and accept power other than the state can genuine participation and cooperation take place.