「행정기본법」상 법령해석제도의 의의와 몇 가지 쟁점

Abstract

Article 40 of the General Act on Administration reflected the legal interpretation system for administrative agencies. This guarantees procedural rights by granting the "right to request interpretation of laws" to anyone who has questions about the interpretation of laws and regulations and clarifies that the heads of central administrative agencies and local governments have the authority and responsibility to interpret laws and regulations with the purpose of the Constitution and laws. In addition, it is significant in that it provides a legal basis for the Ministry of Government Legislation's interpretation of government rights to enhance the legitimacy of administration and the unity of government views, and in particular, the prior protection of the people's rights can be further expanded. However, it is necessary to supplement the system operation of the subject and subject of the request for legal interpretation to the Ministry of Legislation, and in particular, it is urgent to prepare the first legal interpretation procedure performed by the heads of central administrative agencies and local governments. In addition, the actual binding power of the administrative interpretation, especially the government's authoritative interpretation of the Ministry of Legislation, is very significant for administrative agencies and people's lives, moreover, the institutional binding power has been strengthened with the establishment of Article 40 of the General Act on Administration. Therefore, rather than discussing legally binding power, the focus should now be on institutional improvement measures and control and improvement measures for illegal and unconstitutional administrative interpretation so that administrative interpretation can be carried out well. On the other hand, it was confirmed that the use of legislator-centered interpretation theory was insufficient by analyzing previous studies on legal interpretation methods, Supreme Court precedents, and legislative interpretation cases based on the interpretation criteria of Article 40 (2) of the General Act on Administration. Through its characteristics as a policy law and administrative law and the specificity of the legislative process, it was intended to argue that legislator-centered interpretation theory is important in interpreting administrative law. In addition, it was examined that administrative interpretation, especially government authority interpretation by the Ministry of Government Legislation, needs more legislator-centered interpretation than judicial interpretation. Subsequently, it was confirmed that the actual court and the Constitutional Court were using the interpretation data of the Ministry of Legislation as a reference to some extent. With the development of information and communication technology and the acceleration of national informatization, it has become easier to manage and provide legislative data (also legislative process data), and the expertise of legislators and administrative legislators has been strengthened.