行政命令

Abstract

The Constitution provides only three kinds of administrative enactment, i.e., presidential decrees, ordinances of the Prime Minister or the Executive Ministry. For this reason, almost all the constitutional law scholars view that an Act or its subordinate statutes cannot delegate to a rule to stipulate the rights or duties of the citizens, and such delegation is null and void as unconstitutional. Contrastingly, majority administrative law scholars view affirmatively. The Constitutional Court basically agrees with the majority administrative law scholars. The Court states that three kinds of administrative enactment in the Constitution are only illustrative, and if an Act or its subordinate statute delegate to a rule to stipulate the rights or duties of the citizens, such delegation does not contravenes the principle of National Assembly enactment and such the stipulation of the rule cannot be null and void so long as the rule stipulate the rights or duties of the citizens within the limits of delegation. The limits of delegation of the Constitutional Court is largely based on the article 4 of the Framework Act on Administrative Regulations. But the writer asserts that though the necessity of delegation to stipulate the contents of professional, technical, or minor nature by the a cannot be denied, and that rule does not become constitutional, if the enactment by the rule affect the rights or duties the citizens.