법령의 변경과 행정처분 시의 적용법령

Abstract

While the Supreme Court applies the law at the time of an act to a punitive administrative disposition, it applies the law at the time of a disposition to a punitive administrative disposition in the event that a violation of the law continues and a disposition or refusal for the application of a beneficial administrative act. The Supreme Court, however, does not disclose any explicit rationale behind this decision and, accordingly, it is necessary to consider what its rationale is. Administrative actions, such as the cancellation of licenses and the imposition of penalties, should be based on the law at the time of the act. This is because the main purpose of an administrative disposition is retribution against a violation of the law. In addition, considering the principle of legal stability derived from the principle of rule of law, it is necessary to evaluate whether the act constitutes a violation and how serious it is based on the law at the time of the act. A principle of non-retroactivity may be presented as additional rationale if the law at the time of the imposition of a punitive disposition is more disadvantageous. A new law may be applied if there is a change in the law while a violation is not completed but still in progress. However, if a newly revised law is more disadvantageous, the application of an amended law may be prohibited on grounds of the doctrine of legitimate expectation. The disposition or rejection of an application for a beneficial administrative act must be based on the law at the time of the disposition. This is because such a decision is primarily aimed at maintaining and forming legitimate administrative order at the time of a disposition and in the near future. Furthermore, the application of a beneficial administrative act alone does not yet constitute a legal benefit to be protected through non-retroactivity and, accordingly, it is appropriate to measure the situation based on the factual and legal conditions at the time of a disposition. However, if the law at the time of the disposition, or a changed law, is more disadvantageous, the application of the revised law may be prohibited due to the doctrine of legitimate expectation. Finally, it is impossible to apply a favorable new law through interpretation without explicit regulation regarding the imposition of a punitive disposition. This is because it cannot be evaluated as a lack of legislation unless the same provision as in Article 2(1) of the Criminal Act exists, given that favorable retroactivity is at the lawmaker’s discretion.