‘法規命令形式의 行政規則’의 法規性 判斷基準論

Abstract

In principle, ‘Administrative Inner-control Object’ should be controlled by Administrative Rule not by Administrative Regulation, but if Administrative Inner-control Object is controlled in the form of Administrative Regulation, its legal character should be questioned. Firstly, both of the following questions are brought up simultaneously; one is ‘what is Administrative Inner-control Object’ and, the other is ‘when it is controlled in the form of Administrative Regulation, what its legal property would be’. Our case law answers that as a matter of legal character. In case that there are inconformity between the form and substance of its regulation, the case law’s attitude has reasonability in a degree keeping consistency from beginning to now. But in case of just the case precedent of enforcement decree of passenger transport service act, its attitude is different from the past attitude of case law in some aspects. Concerned with Administrative Rule in the form of Administrative Regulation, the arguments surrounding deciding criterion of legal character and recognizing criterion Administrative Inner-control Object would be going on permanantly. We can say ‘the more property of administrative discretion, the more property of Administrative Inner-control Object’ Thus the basic property of Administrative Inner-control Object would be the strongness of character of administrative discretion. Firstly, the more character of activeness·policy-making the concerned administration has, the more possible it would be to choose one from both of the two, discretion administration and binding administration. If so, the matter of giving the legal character to the administration should be decided by its form not by its substance. Secondly, the more profitable the administration concerned is, the more possible it would be to choose one from both of the two, discretion administration and binding administration. But in case of infringing administration there’s no way but to choose discretion administration in consideration of the private person’s legal status as counterpartner. Thirdly, if the administrative sanction concerned is retroactive, the spirit of law commands that the counterpartner of the administration’ legal status should be protected thoroughly, thus, the administration should be left in the midst of discretion, and the rule should have only the character of Administrative Rule. But if the administrative sanction concerned has the character of aiming for the future, it would be ‘vice versa’. Fourthly, the more policy-making character the administration concerned has, the controlling norm of it would have less legal character. In conclusion, in case of discretionary criterion, the deciding criterion of its having legal character or not depends upon the strongness of discretion and the necessity of keeping discretion for the counterpartner of the administration concerned.