행정사무의 대행에 관한 행정법적 고찰

Abstract

As theories on the agency system in administrative affairs are not well developed in legal practice of administrative law, this article seeks to examine whether independent existence of the concept of “agency in administrative affairs” is significant as compared with the contracting-out by the public sector and to find tasks to considerate in the legislative perspectives. Most scholars deny the need for it's independent existence because the agency system in administrative affairs is very similar to the contracting-out system. Their argument is based on the decision of the Supreme Court in which the Court ruled that the Korea Asset Management Corporation entrusted a public auction authority of the tax office director. However, this argument is problematic because it recognizes the defendant as a fiduciary in view of the need for litigation, and it is not appropriate to extend it to the matter of the general agency system. The agency system in administrative affairs has its significance on the grounds of administrative theoretical aspects and administrative practice aspects. In order to legislate the agency system, it is necessary to consider the legal basis of the agency system, to provide guidelines for supervising the agency, and to be liable for national compensation.