행정의 실효성 확보 수단에 대한 평가와 과제 ― 「폐기물관리법」상 과징금과 행정대집행 규정을 중심으로 ―

Abstract

When an waste treatment business makes profit by brazen disregard of the law, like the Uiseong Garbage Pile case, it results in a large amount of public expense spent in the treatment of illegal waste, leaving the responsibility passed on to the public. Incidents like these not only brings seriously damage to the principles of the “Polluter Pays” or the Environmental Justice, but also induce repeated exploitation of the leeways of the law, not to mention incapacitation of the enforcement power of the law. The easiest solution may be tightening up regulations and sanctions; however, the burden to bring further restriction on individual rights may outweigh the improvement of the effectiveness of such regulations or sanctions. Securing the effectiveness of the administrative regulation is difficult, not solely because of the inherent deficiencies in the regulative system, but mainly due to the lack of proper enforcement measures implemented in the law and regulation to utilize when non-compliance arises. The revised “Waste Control Act” of November 26, 2019 strengthened the standards, obligations and sanctions of waste treatment companies to supplement the deficiencies in the waste management administration. Emphasizing the efficiency, convenience, and speed of administration by imposing punitive penalties or improving administrative vicarious execution procedures may force execution only for the achievement of the administrative objective, failing to embrace the institutional purpose of minimizing the infringement of individual rights and interests. In addition, the revision that broadly expands the scope of the person in charge to those concerned without providing specific standards may design the law in conflict with the original purpose of the legislation, by delaying, not expediting, the administrative procedure. In addition to the traditional means of securing the effectiveness of administrative enforcement, it is necessary to make use of new types of measures to ensure the effectiveness of administration, such as charges for compelling compliance, administrative disclosure, and restrictions on government-licensed business. The effectiveness of the charges for compelling compliance can be increased by repeatedly imposing the enforcement fee until the administrative obligations are fulfilled. Administrative disclosure can secure the fulfillment of obligations through indirect and psychological pressure, and restrictions on government-licensed business can achieve effects such as refusal of various permits due to violations of prior obligations and non-fulfillment of orders. In case where multiple types of measures to ensure the effectiveness of administrative enforcement present in one law, it is desirable to design the system having the most direct and expeditious means such as administrative vicarious execution in the frontline, prepare other measures like the charges for compelling compliance to use only where the requirements for the direct and expeditious means are not met.