행정사무의 민간위탁에 관한 행정법적 고찰

Abstract

For the purpose of the improvement of administration efficiency and the acceleration of private sector participation, the Contracting-out of administration affairs is widespread these days. This article aims to review the Contracting-out of the central administrative agency’s administration affairs from the legal point of view. The concept of the Contracting-out is not the delegation of administrative authority, but the partial transfer of administration affairs. Although the subject of the Contracting-out is prescribed as “affairs not directly related with the people’s right and obligation such as investigation･test･license･management affairs” in the National Government Organization Act, there are some controversy regarding the scope of the Contracting-out affairs. The representative examples are some legislations which contain the provisions of the contracting-out of the governmental authority. Also the post management for the Contracting-out is not conducted well. Therefore it is necessary to establish the standard judgment for the subject affairs of the Contracting-out as follows: ① improved efficiency and profitability, ② low publicness, ③ sustained quality of services. And the establishment of the post management system to supervise the operation conditions is required as well. Furthermore, the basic Principles of the Administrative Law, such as the Principle of the Legal Reservation, the Principle of the Equal Treatment, the Principle of Administrative Procedure, are taken into account when analyzing the issues about the Contracting-out from the point of public law.