행정절차법상 입법예고와 법령보충적 행정규칙- 합목적적 해석론과 행정부 실무의 차이를 중심으로 -

Abstract

For constitutional control, legislative administrative rules shall be enacted through preannouncement of legislation provided in Article 41 of the Administrative Procedures Act, inasmuch as both Constitutional Court and Supreme Court have acknowledged that legislative administrative rules, which are designed on the delegation of upper legislative rules, have binding effect of law, and the literacy of the APA does not confine the duty of preannouncement of legislation only to those ordinances enshrined in Constitution. In the current practice by the Administration, the legislative administrative rules are subject to preannouncement of administration but preannouncement of legislation, however, it is not difficult, in procedure, to discern those rules from normal administrative rules, in that not only are they easily distinguished due to the explicit words of delegation, but cannot function as normal administrative rules when exceeding the limit thereof. Considering the objective intent of lawmakers in light of the substantive character of those rules verified in review of overall legal structure and comparative laws, rather suitable is applying legislative administrative rules to preannouncement of legislation, whereas it is impossible, according to the literacy and the history of the APA, to interpret that carrying out preannouncement of administration constitutes the satisfaction of preannouncement of legislation. Given the current litigation system and judicial precedents, recognizing this issue as a breach of due process of law is not likely to lead to legal stability disrupted, so the interpretation in the Administration needs to be changed.