행정구제에 있어서 온정주의

Abstract

This paper deals with the petition system, the grievance settlement system and the application for inspection in Board of Audit and Inspection Act in the respect of paternalism. It points out that the reason why those paternalistic systems exist is insufficient condition for us to practice the modern law system. It is necessary to adjust a new idea or system to one's own culture in accepting foreign culture. Accordingly it is not to be blamed that we have both Administrative Appeals Act and those paternalistic systems. On the contrary, we can run the risk that the social integration and legal order will be destroyed if a modern law system works without adjustment. But we can point out some problems in those paternalistic systems. First they cost us doubly. We should spend much national budget in operating those system. Second, it is the most important problem, their actions and the legal effects,generally, are not binding. And so, the possibility of settlement on the dispute often depends on the power of the head of a board. Consequently, it is limited to complementing the formal Administrative Appeals Act to use those paternalistic systems. If this principle is not kept and they play a leading role, it is difficult to establish the principle of the rule of the law in Korea.