「행정기본법」의 이의신청에 대한 검토

Abstract

General Act on Public Administration has a legal basis for formal objection so that objection systems prescribed in individual laws can be defined in a unified and systematical way. Formal objection system is easy in that one can raise an objection against the relevant administrative agency and has advantages in that administration can promote its self-control. But academic and practice have raised a doubt if the objection system will be profitable for relief of rights. It has been traditionally criticized in that as individual laws define objection with different terms, which may cause confusion; as period is not certain between administrative appeals and administrative litigation, the lapse of the period of filing in administrative appeals can be occurred when filing a legal challenge, which may hinder a formal dispute system; and as objection requires the disposition agency to review its issued disposition and rectify it, one does not go through independent judgment in a reputable organization, which resultingly repeats a useless procedure. To solve such problems, Article 36 of the General Act on Public Administration has ground rules for an objection and individual laws have established common methods and procedures for the system that had been regulated in different forms. Moreover, it clarified the period of objection for establishing a relation with a formal complaint procedure and mandated the application of Article 36 of the same act although individual laws have no provisions on objection, which contributed to expanding the scope of protecting people’s rights. But for effective operation to the purpose of General Act on Administration, objection should be established as a system by supplementing it legislatively. First, there is a need to clarify the scope of objection prescribed in the General Act on Administration. Judging by the Article 36 of the same Act, there seems no legal conflict, but judging the applicability of the Administrative Appeals Act should be preceded because there are forms that are difficult to classify objection from exceptions of Special Administration trials or Administrative Appeals and there are various types of Special Administration appeals. Second, appeals proceedings in harmony with the Administrative Procedure Act should be prepared to secure the consistency of objection. Under the connection with the Administrative Procedure Act as well as administrative appeals and administrative litigation, objection system should be refined and by doing so, the system can function to the original purpose of expanding the relief of people’s rights. Third, individual laws need to refine objection clauses. Since the grounding clauses for objection are provided in the General Act on Administration, there is a need to consider applying the Article 36 of the General Act on Public Administration by refining unnecessary provisions.