적법절차원칙 구현을 위한 청문제도 운영 방안

Abstract

Under the Administrative Procedure Act(APA), as a due process for intrusive administrative measures, we require the interested parties to be given prior notice of the disposition and an opportunity to submit their opinions, and to hold hearings in exceptional cases where other statutes stipulate that hearings be held. An administrative hearing is understood as a trial-type fact-finding process. However, more often in Korea, it is operated as mere an oral-opinion-submission procedure rather than a trial-type fact-finding procedure. As a result, administrative agencies do not show much interest in guaranteeing the independence of the hearing examiners in the operation of the administrative hearing. Recently in the increasing number of cases a hearing examiner is selected from among experts such as lawyers or professors. However, Korea’s APA still permits the selection of hearing examiners among general administrative officials or former public officials. Even if the civil servants selected as the presiding officer of the hearing belong to a different department from the adjudicating department, it is difficult to expect independence from the adjudicating department due to frequent rotation within the office. In addition, even in the case of selecting a hearing examiner from among external lawyers, the adjudicating department often intervenes in the selection process, and there is a risk of conflict of interest, making it difficult to expect independence. The most important thing in the administrative hearing is to have an independent hearing examiner listen to statements from both the agency staff and the interested party, collect evidence, check the facts, judge the applicability of the relevant laws, and present an opinion on whether to issue orders. To secure the independence of the hearing examiner, it is necessary to hire a full-time hearing officer selected from among those with certain legal experience. The hearing officer needs to be exclusively responsible for presiding over the hearing and protected from interference from the head of the disposition department or administrative agency. The recent revision of the Administrative Procedure Act not only expanded the subject of the administrative hearing but also introduced the hearing committee system. As a result, the burden of time and cost to pay for the administrative disposition procedure became much greater. However, the reality of administrative hearing in Korea is insufficient to guarantee the Principle of due process of law.