법치행정의 요청과 행정국가의 제문제에 관한 소고

Abstract

There is no disagreement on the fact that the ‘Principle of Rule of Law in Administration’ that administrative activities must be carried out in accordance with the law is a key element of the rule of law. However, in modern times, the so-called ‘administrative state trend’ also threatens the realization of the administration of the law in several aspects as follows. First of all, as a result of the penetration of administrative action into areas that have traditionally been in charge of other state agencies, administrative legislation and administrative appeal are actually being widely used and increased. There is a problem that administrative legislation is actually insufficient in control, although it deserves strong control in that it is created by the administration with poor democratic legitimacy through simple procedures. Therefore, this paper examines whether there is anything to be improved in the control of the National Assembly and judicial control over administrative legislation, and suggests specific measures. Regarding administrative appeal, in order to better utilize them as a control tool to promote the legality of administration, we examined whether there were any improvements in terms of remedy for violation of rights and self-control, and suggested various improvement directions. Next, in today's administrative state, administrative investigations are being activated in the overall social field along with the expansion of the scope of administration. In order to respond to the request of the Rule of Law in Administration,, measures must be prepared to improve the side effects of indiscriminate collection of administrative investigation data and illegal recruitment of evidence. The characteristics of individual administrative investigations should be examined, and if necessary, protection of the subject of investigation through warrantism and the right to refuse to state should be promoted, and criminal punishment regulations for non-cooperation in administrative investigations should be deleted, and the establishment of criminal punishment regulations with the same purpose should be avoided. I hope that the discussions and proposals in this paper will help bring the request of the Rule of Law in Administration one step closer.