우리나라의 적극행정 법제에 관한 연구 - 제도의 모호성과 모순성 및 무가치성 문제를 중심으로 -

Abstract

Active administration in Korea refers to the proactive handling of public duties by civil servants to serve the public good, such as improving unreasonable regulations. The state has an obligation to promote this practice. First introduced in 2009, the legal framework for active administration was formally established in 2019, including provisions for immunity and litigation support. Today, it is governed by laws such as the Administrative Basic Act, the National Public Officials Act, the Local Public Officials Act, and the Board of Audit and Inspection Act, with further details in related regulations. This study examines these legal frameworks and identifies several issues that hinder the effective promotion of active administration. These include 1) the ambiguity of the Administrative Basic Act, 2) the contradiction of immunity from adverse actions, and 3) the ineffectiveness of legal assistance and litigation support. To address these problems, the following measures are proposed as follows. First, the Administrative Basic Act should be clarified, or a consideration of enacting a separate law regarding active administration should be considered. Second, stronger protection and encouragement should be provided for intended active administration. Pre-consultation by the Board of Audit and Inspection should be rather abolished. Third, while litigation support should be expanded, additional protections for active administration should be considered such as treating it as a exemption of civil and criminal liability. With these reforms, it is expected that the legal framework for active administration will effectively promote its implementation and become a reference for other countries.