행정절차법과 행정기본법의 관계 재정립

Abstract

In the Korean Administrative Procedure Act, amended on January 11, 2022, substantive provision on public commitments (Zusicherung), disclosure of violations, and administrative plans were newly introduced. The Korean General Act on Public Administration and the Administrative Procedure Act have overlapping provisions such as the principle of trust protection and reporting. In addition, the Korean General Act on Public Administration has regulations that are confused with the principle of balancing in administrative plan as a criterion for exercising administrative discretion. As such, the General Act on Public Administration and the Administrative Procedure Act pose difficulties in their interpretation and application due to overlapping or similar regulations. Today, the procedural law not only performs a function of contributing to the substantive law, but also has independent functions such as securing democratic legitimacy and prior remedies, as well as enhancing administrative efficiency. Procedural law and substantive law are not separated completely, but complement each other organically. In that respect, the Korean General Act on Public Administration and the Korean Administrative Procedure Act should be complementary, and in the long run, they should be integrated. Until the integration is realized, it is necessary to prevent a contradiction between the General Act on Public Administration and the Administrative Procedure Act and to make partial amendments to enhance the completeness of each Act. First, in the Administrative Procedure Act, some provisions on ‘procedural principles’ should be prepared, and provisions on general principles of Administrative Act should be unified in the General Act on Public Administration. Since the provisions on the duty of faithfulness in the General Act on Public Administration are ambiguous, it is desirable to delete them and to regulate the principle of equality in relation to the so-called self-binding of the administration (Selbstbindung der Verwaltung). Second, the reporting system is stipulated in two ways in the General Act on Public Administration and the Administrative Procedure Act. In my personal opinion it is desirable to uniformly regulate the reporting system in the Korean Administrative Procedure Act. Considering the intrinsic function of the reporting system, the right to substantive review should be reserved. For this, the period of consideration must be established before the report becomes effective. In case of reporting violations of laws and regulations during this period, regulations should be prepared for the administrative agency to suspend or ban. Third, the content regarding the criteria for exercise of discretion in Article 21 of the General Act on Public Administration is inaccurate and also not legally justified. Discretionary action has nothing to do with the principle of balancing. Article 21 of the General Act on Public Administration should make it clear that discretion, not just balancing, should be exercised appropriately for the purpose of the given authority. Although automatic disposition was introduced in the General Act on Public Administration, the procedural regulations are not considered at all. In this regard, the Korean Administrative Procedure Act should revise the rules of procedure related to automatic disposition. The enactment of the Korean General Act on Public Administration is a new challenge in the history of Korean administrative law. To make this Act more useful, I think that it needs to be harmonized with the Korean Administrative Procedure Act, and in the long run, both laws should be integrated. For the enactment of such an so-called “integrated administrative code”, a forward-looking attitude and response from academia and administrative practice are needed in the future.