행정법의 成文化 과정상 숙의(熟議)의 적정성 검토 - 행정기본법 제정 과정을 중심으로 -

Abstract

In an environment where a large amount of rapid legislation is required, we should be wary of the hastiness of legislation. In order to prevent hasty legislation, a legislative procedure must proceed legally. In addition, the deliberation must be done in accordance with the purpose of the relevant procedures. These are due to several factors, including: (1) Substantial constitutionalism also applies to a legislative procedure. (2) In order for the principle of due process to be fully realized in legislation, the appropriateness of deliberation must be guaranteed. In particular, the demands should be more strictly observed in the enactment of a new law, which is the first stage of the implementation of the rule of law. Nonetheless, many questions have been raised about the process of enacting the General Act on Public Administration, which is regarded as a watershed moment in administrative law. Some studies point out problems in the process of enacting the Act in a fairly strong tone. On the other hand, some emphasize that the process is appropriate. This opinion is based on the history of discussions on the Act's enactment as well as the fact that the contents of the Act were already reviewed in the enactment of the Administrative Procedures Act. This study analyzed the appropriateness of deliberation in the process of enacting the Act. It is considering the legislative significance of the enactment of the Act, and the reality that the appropriateness of deliberation has been relatively neglected compared with the legality of a legislative procedure. In studying the appropriateness of deliberation, this paper has divided the legislative procedures of the Act into a step in the government and the one in the National Assembly. Based on this, it investigates whether the deliberation in each step was appropriate.