Administrative Decree Research Articles

사법적 통제를 위한 법령보충적 행정규칙의 성격에 대한 논의 체계 검토 - 법규성과 처분성에 대한 검토 체계를 중심으로 -

학계에서는 일찍부터 법령보충적 행정규칙의 법적 성격에 관한 논의가 있어 왔다. 논의는 주로 법령보충적 행정규칙의 법규성 인정여부에 집중되는데, 이는 실질과 형식 중에서 어느 요소를 기준으로 법적 성격을 판단할 것인가에 대한 논쟁이다. 주류적인 논리의 쟁점을 역순으로 추적하면 대체로 ‘법규성 인정여부→실질·형식 중 핵심요소는 무엇인가→실질·형식의 불일치 허용여부→법규명령과 행정규칙의 구분→법규사항이란 무엇인가→법규란 무엇인가’ 등으로 정리할 수 있다. 이처럼 종래의 논의 체계는 법령보충적 행정규칙에 관해 법규의 개념에서부터 법규성 유무에 이르기까지 광범위한 폭을 보이고 있다. 그러나 법규성 인정여부를 따져보는 실익 중에서 사법적 통제(사법적 구제)에 대한 쟁점은 직접 포함되어 있지 않다. 이에 본 연구는 사법적 통제 관점에서 법령보충적 행정규칙의 성격에 대한 논의 체계를 검토한다. 이는 선행연구들이 다루지 않았던 쟁점으로써 새로운 ‘연구 주제’이다.BR 물론, 종래의 법적 성격에 대한 연구도 쟁송법상 적법요건에 해당하는 대상적격과 깊은 관련을 맺고 있다. 그러나 본 연구는 단순히 법령보충적 행정규칙의 사법적 통제 대상성을 살펴보는 것이 아니라, 사법적 통제 대상성을 논의하는 체계를 검토한다. 사법적 통제 대상성을 논의하는 체계에 대한 연구는 작용법과 쟁송법의 개념 체계 및 논리적 연결고리를 살펴보는 의미를 지닌 쟁점이다. 한편, 종래 연구는 다양한 논점들을 입법실질과 입법형식의 패러다임(paradigm) 속에서 분석함에 따른 한계를 지니고 있었다. 이러한 문제점에 대해 학계의 지적이 꾸준히 제기된 바 있으며, 최근에는 실질·형식의 패러다임에 제한된 접근법에서 벗어나려는 의미있는 시도가 나타나기도 하였다. 본 연구 역시 종래의 실질·형식의 패러다임을 적용하지 않고, 실질적인 내용 및 실익을 분석하는 ‘연구 방법’을 취한다. 이는 실질·형식의 패러다임이 야기하고 있는 논의의 난맥상에 대해 새로운 접근법을 모색하는 의의가 있다.BR 이상과 같은 연구 주제와 연구 방법에 따라, 본 연구는 먼저 사법적 통제를 위한 법령보충적 행정규칙의 성격에 대한 논의 현황을 살펴본다(II). 특히, 실질-형식에 기반한 논의의 한계 및 사법적 통제를 위한 논의 체계의 유형에 대한 검토의 필요성을 제시한다. 다음으로 인접 개념의 관계 및 사법적 통제를 위한 논의 체계에 대해 검토한다(III). 여기서는 법규성의 개념 및 구속력·처분성과의 관계를 살펴보고, 사법적 통제를 위한 논의 체계도 분석한다.

UKURAN KEABSAHAN KEPUTUSAN TATA USAHA NEGARA DALAM PERSPEKTIF HUKUM ADMINISTRASI

This study aims to determine the size of the decision of state business administrative legal perpectives. In connection with the above, a judge can set aside the lower norms that are the basis of the decision, in the sense that the judge can not use it as a measurement because it is considered contrary to higher regulations. Thus, the judge can apply the above regulation as a measurement tool for evaluating the disputed State Administrative Decree.Likewise also if after the judge collects the facts and then finds, tests and believes that the making of the State Administration Decree was made with bad ethics and morals and does not carry out the general principles of good governance, then the judge can cancel the Administrative Decree

The Schorsing in Implementation of Administrative Decision that Endanger the Environment by Administrative Court

The postponement criteria of the implementation of KTUN (Administrative Court Decision) based on Article 67 of the Act Number 5, 1986 concerning the State Administrative Court (the Act of Administrative Court) merely states that such Postponement can be made if there is a very urgent circumstance which results in the plaintiff's interest to be lost if the sued state’s administrative decision is still implemented. By the promulgation of the Act Number 30, 2014 on the Governance Administration, it reregulates the delay of the implementation of the decision worded in Article 65. However, there are varies in the regulation of the implementation of the such decision pursuant to Article 67, of the Act Law Number 5, 1986 concerning the State Administrative Court. In accordance with Article 65 of the Administrative Governance Act, it rules more detailed regarding the reasons for the State Administrative Court that may delay the enforcement of a Government Decree, one of which if a Government Decision or Action "has the potential to cause environmental damage" and the Court in issuing such a delay shall be in the form of a "Verdict", so that it is different from the arrangement in Article 67 of the State Administrative Judicature Law and its derivatives which stipulates that the reason for the postponement of the validity of a State Administrative Decree if there is an "urgent circumstance" issued in the form of "Stipulation".
 The research shows that the Act Number 30, 2014 as a substantive law does not regulate in detailed regarding procedural law of such adjournment application, hence based on the principle of lex specialis derogat legi generali a judge has to refer to the rule on the postponement that already exist till it is enacted the new one that might accommodate the postponement implementation and it can determine that the Postponement Execution Delay a judge must view the urgency of the Decision/the Government Action might be delayed by referring to review result or auditing from auditors of the environment that has been certified by the LSK of environmental auditors that is under the Ministry of Environment, and it is not against “ the public interest”.

Is Japan Ready for Enduring Powers? A Comparative Analysis of Enduring Powers Reform

AbstractThis article seeks to understand why the uptake of “third generation” enduring powers in Japan has been disappointing from the perspective of reformers who introduced the powers in 2000. In addition to questions about optimum design of this particular legal instrument, it is an opportunity to explore deeper questions about regulation and the role of law and the market in ageing, post-industrial societies such as Japan. First, the article explains the form that enduring powers take in Japan. Second, it presents statistics on the uptake of enduring powers. Third, the article presents possible reasons for this low uptake, including unsuitable social norms, a lack of awareness, excessive regulation, unresponsive doctrine, and entrenched judicial values. Finally, the article concludes that while these reasons all have explanatory value and are not easily disaggregated, comparative analysis presents some promising developments in Japan such as the growth in candidates to take on enduring powers who are regulated and organised through legal professions, civil society, local government, and the court system. At a deeper level, the article concludes that the fate of enduring powers turns not only on regulatory and doctrinal levers but also on the relative strengths within Japan’s continuing legal development of divergent views on the imposition of formal legal norms and market mechanisms upon relationships previously regulated by informal social norms or administrative decree.

Is Japan Ready for Enduring Powers? A Comparative Analysis of Enduring Powers Reform

AbstractThis article seeks to understand why the uptake of “third generation” enduring powers in Japan has been disappointing from the perspective of reformers who introduced the powers in 2000. In addition to questions about optimum design of this particular legal instrument, it is an opportunity to explore deeper questions about regulation and the role of law and the market in ageing, post-industrial societies such as Japan. First, the article explains the form that enduring powers take in Japan. Second, it presents statistics on the uptake of enduring powers. Third, the article presents possible reasons for this low uptake, including unsuitable social norms, a lack of awareness, excessive regulation, unresponsive doctrine, and entrenched judicial values. Finally, the article concludes that while these reasons all have explanatory value and are not easily disaggregated, comparative analysis presents some promising developments in Japan such as the growth in candidates to take on enduring powers who are regulated and organised through legal professions, civil society, local government, and the court system. At a deeper level, the article concludes that the fate of enduring powers turns not only on regulatory and doctrinal levers but also on the relative strengths within Japan’s continuing legal development of divergent views on the imposition of formal legal norms and market mechanisms upon relationships previously regulated by informal social norms or administrative decree.

National parks in the service of nation building: the pioneering work of Lipa Yahalom and Dan Zur in Israel

… From the slopes of the Lebanon to the Dead Sea,we will worship you with plowsWe will plant thee and build thee,we will make thee very beautiful.(Morning Song by Natan Alterman) In 1998, on the ce...

The Study of the Correlation between Technical Standard and Administrative Decree Based on System Dynamics

According to the statistics and analysis of the situation that administrative decrees reference technical standard, this paper find that there are several conclusive interactive relations between these two terms. Paper simulate the inner mechanism of the relationship between technical standard and administrative decree in the way of system dynamics and identify the key factors which has great impact on the correlation, point that there are three associated states of "strong, weak, zero" between technical standard and administrative decree and give the way of how to define them. Finally it makes a conclusion in the paper that we should construct an appropriate correlation depending on their needs.

The New Administrative Decree regarding the German Reorganization Tax Act

On 2 May 2011, the German Federal Ministry of Finance published the official draft of an administrative decree that clarifies uncertainties regarding the Reorganization Tax Act, which implements the EU Merger Directive into German law. The following article analyses central aspects of this draft, which comprises 177 pages, and highlights the new rules for certain merger, spin-off and contribution constellations.

Efficiency versus Validity: The Dilemma of the INDOPCO Regulations

The article examines the potential invalidity of the INDOPCO regulations, which were finalized by Treasury in 2004 to provide bright lines as to the proper tax treatment of costs associated with intangibles. They were promulgated to reduce tax controversies, which had abounded due to the broad underlying statutory language, and the imprecise standards developed in case law. Although Treasury's intent was laudable, the regulations are likely invalid in several aspects because they conflict with prior judicial interpretations of the statute. This conclusion seems likely despite the Supreme Court's 2005 decision in National Cable & Telecommunications Association v. Brand X Internet Services (indicating administrative agencies could sometimes overturn prior judicial statutory interpretations). Certain provisions of the INDOPCO regulations are likely invalid, but detrimental primarily to taxpayers that are particularly ill-suited to wage a costly and time-consuming legal battle to challenge them. An invalid administrative action that is likely to remain unchallenged has troubling policy implications generally. However, this appears to be an emerging trend by Treasury to overturn adverse court decisions by administrative decree.

Réflexions sur le contentieux de la responsabilité médicale

Medical activity is not risk free, but for many years (since 1936 in France) it is accepted that healthcare professionals are not obliged to provide cure but rather the means to achieve cure. An expert is designated in most of the court cases concerning medical responsibility. This expert is chosen by the judge from a pre-established list. To be enrolled on the list of judiciary experts, candidates must apply and meet a certain number of criteria set by administrative decree. Medical expertise is a determining factor in the procedure. The conclusions of the expert inform the judge who uses them the make the final decision.

Politics in Moscow: local issues, areas and governance

Sample populations of three areas in Moscow, broadly representative of élite, lower class and central city social-class structures, are surveyed for their attitudes and opinions regarding quality of life issues and matters of governance. The survey is placed in the context of recent reforms of local administrative structures which have been imposed by administrative decree. Political preferences and opinions about local governance are set in the context of reactions to the process of economic reform in terms of the impact on the material circumstances of daily life in Moscow. Results of the recent, 12 December 1993 elections to the new City Duma are set against the results of the survey conducted in October 1993.

Information distribution practices of federal statistical agencies: The census bureau example

Abstract U.S. government agencies collect statistical data either under a Constitutional mandate (as in the case of the decennial census) or by legislative mandate or administrative decree. The preeminent example is the Bureau of the Census which, for the 1990 decennial census, collected and distributed some 50 gigabytes (the equivalent of over 100 CD-ROMs) of data, if digitized map boundaries are included. Some major agencies producing public statistics include the Bureau of Labor Statistics, Social Security Administration, Bureau of Economic Analysis, Energy Information Administration, Departments of Education and Agriculture, and National Center for Health Statistics. The pricing and distribution practices of these agencies vary widely, with some agencies encouraging widespread distribution of data and others looking on distribution to the public as not within their mandate. This article elucidates issues of reasonable distribution policies and adaptation to technological change of such agencies by focusing on the distribution activities, both currently and historically, of the Bureau of the Census.

By Competition or Administrative Decree? The Contest for the Tomb of Napoleon in 1841

On May 12, 1840, Charles de Remusat, acting in his capacity as Minister of the Interior, introduced a bill in the Chamber of Deputies that was to create an immediate sensation and generate a controversy of long duration. This projet de loi called for the appropriation of funds necessary to bring Napoleon's body back from its resting place on the distant island of Saint Helena and construct his tomb on the banks of the Seine. Rather than announce that an agreement had been concluded with the English, and then seek the necessary funds from the Chambers, the government chose this means to accomplish both tasks at once. The tone of finality in the bill's announcement of the Retour des cendres extended to the site for the tomb as well: after their disembarkation, Napoleon's remains were to be taken to the church of the Invalides in Paris, where “a solemn ceremony … will inaugurate the tomb that will retain them forever.”

By Competition or Administrative Decree? The Contest for the Tomb of Napoleon in 1841

By Competition or Administrative Decree? The Contest for the Tomb of Napoleon in 1841

The Causes of Price Inflexibility

Classification of factors determining price rigidities, 474. — Characteristics of the product, 476. — Law or administrative decree, 481. — Concentration of control, 482. — Marketing techniques, 484. — Habits and customs, 486. — Contractual arrangements, 486. — Structure of the market, 487. — Conclusions, 488.