低炭素綠色成長基本法令上의 法的 問題點 - 制度論的 考察을 中心으로 -

Abstract

Traditionally, the role of administrative law has been fixed within the boundary of disputes about right and duty, by that, we have had little concern with the righteousness of substantial contents of administrative law themselves. Thus, the beginning and end of administrative law is almost about ‘character of disposal’ of administrative action. This is the background of the fact that the role of administrative law should be limited within disputes about right and duty. But it is needed that the playrole of administrative law be extended to the matters of legal system It is certain that administrative law and study of public administration could be differentiated from each other, but the severe differentiation of the two made study of legal system play little of a role in the field of administrative law. If the ultimate function of administrative law is to serve the public good of people, administrative law should give more attention to the study of legal system. The joint area of administrative law and study of public administration would be the study of legal system, and the study of legal system would be the study of legislation. ‘Framework Act on Low Carbon, Green Growth’ is born just before, It’s not the time of accurate discussion of ‘Framework Act on Low Carbon, Green Growth’, but the time of discussion of legal system for Low Carbon, Green Growth. Firstly, there are little legal methods to control the running alone of department of public administration. The regulations of contents of Low Carbon, Green Growth are trusteed to The Enforcement Ordinance of ‘Framework Act on Low Carbon, Green Growth’ by way of general mandate. Department of public administration will take the leading position in carrying out policy of Low Carbon, Green Growth without control of the National Assembly. This is just an example of skeleton legislation. Secondly, there is a problem on the publicity of enterprize information. Enterprize information means property right to the enterprize concerned. Nevertheless, The above Framework Act urge the enterprizes to publicize too much its information by giving way to the purpose of abriviation of green house gases and uplifting of energy efficiency. It would be the violation of the principle of proportionality of constitutional law. Thirdly, there are matters of double control and over-control. If a central government organ takes its own service, the other central government organ should respect its service. Thus there’s no reason one central government organ has its own control of another one. In view of managed private enterprize it is perfectly a kind of double control. and it is overload to private enterprize that the government demands both sides of reduction of green house gases and uplifting energy efficiency. Finally, as a matter of legal system, It is doubted that the principle of market basis & civilian initiative is missing, and local government has little to do in the time of local autonomy according to ‘Framework Act on Low Carbon, Green Growth’. This means the situation of performing the law could be varied to those who enforce the law and lose consistency. Even though the law has been made in a hurry, the legislation of it is very meaningful in the history of legislation. For beginning is half. Forwards, it should be the law of national great artery through the reasonable revision of it.