委任立法의 限界와 行政立法에 대한 司法審査

Abstract

The increase of delegated legislation is inevitable in the modern states. So the judicial control over administrative rule-making is more important than ever. Unless delegated by the act, delegated order cannot provide modification, supplementation of people’s rights and obligations or new contents which are not stipulated by the act. In this Supreme Court case, above legal principle which is established by the Supreme Court is confirmed again. The Supreme Court issued a ruling that Article 30-2 of the former Public Officials Salary Rules, which is a Presidential Decree and limits additional salary for continuous service up to certain times, unfavorably limits the right to claim for salary given by Article 10 of the former Military Personnel Salary Act without delegation of the former Military Personnel Salary Act which is the mother act, and it is invalid as it goes beyond the scope allowed by the mother act. In the above case, the Supreme Court divided on the interpretation of the Article 10 of the former Military Personnel Salary Act and the issue was whether it applied to ordinary times(majority opinion) or it applied only in times of national emergency(dissenting opinion). The Majority opinion hold that Article 30-2 of the former Public Officials Salary Rules stipulated the contents concerning rights and obligations of citizens without specific delegation of the mother act, but the dissenting opinion said that the administrative agency can provide the right to claim for salary with discretion. In this regard, this case is different from other cases which ruled the limits of delegated order. This case is meaningful because it emphasizes that it is necessary that administrative agency should examine thoroughly every relevant mother acts and review carefully whether the provisions meet the regulatory purpose of each relevant mother act and whether they are within the scope delegated by the mother acts, when it enacts or modifies the provisions concerning people's rights and obligations in the process of integrating many enforcement decrees of the acts relating state officials in various positions such as Public Officials Salary Rules into one enforcement decree of the act.