행정기본법과 행정절차법의 관계정립의 기본방향

Abstract

The General Act on Public Administration, enacted in 2021, faces problems of overlap in terms of legislative intent and legislative content, and dispersion and inconsistency in terms of regulation in relation to the Administrative Procedure Act, enacted in 1996. This has been raised as a problem from the perspective of the legitimacy of the legislative system, and various measures have been proposed to solve this problem. Among these options, the dominant view is that the two Acts should be unified to create a general administrative code. However, the issue of unifying and harmonising the laws is not an easy task. First of all, when integrating the two laws, the question is whether they should be integrated around the Administrative Procedure Act or the General Act on Public Administration, or whether they should be reorganised into a unified code that can have the substance of a kind of administrative constitution. In addition, the integration of two laws with different jurisdictions will necessarily be preceded by legal consultations between the government agencies responsible for the two laws. Given the many challenges of integration, it is difficult to predict when the long-term goal of integration can be achieved. It is therefore necessary to consider measures to resolve the contradictions and inconveniences of the two laws even during the long journey of integration. Whether integrating the two laws in the long term or adjusting them in the short term, the common issues to be addressed are: (1) systematic legitimacy by eliminating contradictions, overlaps and scattered rules; (2) legal inconsistencies that scholars have identified as problems; (3) reconsidering whether to continue codifying matters that are better left to the development of precedents and theories, such as general principles of administrative law and constitutional principles; (4) reconsidering whether and to what extent government policies such as active administration should be stipulated in the General Law and, if so, how much weight should be given to them; (5) clarifying provisions that are difficult to stipulate in the General Administrative Law in relation to the legislative activities of the executive branch; and (6) prescribing new regulations that need to be supplemented and revised in individual laws. On the other hand, for the long-term task of integration, it will be necessary to (1) finalise the scope of the unified code and determine the identity and status of the unified code, (2) determine the competent departments accordingly, and (3) determine the name and content of the unified code. For the short-term parallel adjustment to solve public inconveniences before the long-term integration, it is necessary to (1) recognise that there is no normative hierarchy between the Administrative Procedure Act and the General Act on Public Administration in general, and to eliminate the most serious overlaps, dispersals and contradictions; and (2) not to be bound by the distinction that the Administrative Procedure Act is a procedural law and the General Act on Public Administration is a substantive law in a schematic sense. In essence, the General Act on Public Administration and the Administrative Procedure Act should eventually be integrated. I mention parallel co-ordination because integration is not expected to be easy at this stage, not because parallel co-ordination is a sustainable option in the long term. The most difficult issue for unification is which ministry will be responsible for legislating and enforcing the unified code. Once this issue is resolved, unified legislation is not a particularly difficult task. There is the position of the Ministry of Government Legislation, which has enacted the General Act on Public Administration, and the position of the Ministry of Interior and Security, which has enacted the Administrative Procedure Act.