한국에서의 입법평가 : 사례연구 ― 입법평가 기준틀의 모색을 위한 시론 ―

The evaluation of legislation means the analysis and assessment of the effects of legislation. It basically focuses on the effects of any bill or statute. It usually analyzes what changes a bill will bring about or a statute have brought about in the behaviors of people and social circumstances. Then it assesses the results of change in view of cost and benefit. In result, the legislative evaluation is interested in the causal relationship between the legislative measures and social realities. This paper is a preliminary study on the framework and criteria for legislative evaluation in Korea. It elucidates seven criteria of evaluation: (i) Sufficient Grounds and Definiteness of Legislative Goals; (ii) Propriety of Regulation Scope; (iii) Reasonableness of Alternative Probe; (iv) Systemic Consistency of Regulation; (v) Effectiveness of Legislation; (vi) Efficacy of Legislation; and (vii) Efficiency of Legislation. The evaluative elements in each criterion are as follows. Criteria of Evaluation Types of Evaluation Elements of Evaluation Sufficient Grounds and Definiteness of Legislative Goals Ex-ante Evaluation ① Fully catch hold of the nature of the risk or harm on the basis of accurate and sufficient factual grounds? ② Properly judge that an affair causing risk or harm embraces any other good effect or utility? ③ Properly set up the legislative goals on the sufficient factual grounds? ④ Obviously present the legislative goals? Propriety of Regulation Scope Ex-ante Evaluation/ Midterm Evaluation ① Classify the weight of risk or the priority of regulation need between the objects of regulation? ② Properly define the scope of regulation according to the above priorities? Reasonableness of Alternative Probe Ex-ante Evaluation / Midterm Evaluation ① Cannot the new legislative goals be achieved through the existing regulations? ② Does a temporary alternative belong to the ambit of the legislative powers? ③ Generally estimate the presumptive costs and benefits of each possible alternative? ④ Do the opted legislative measures cause damage to the important constitutional principles and values? ⑤ Do the opted legislative measures guarantee the superiority over any other alternatives? Systemic Consistency of Regulation Midterm Evaluation ① Is the strength or density of the regulation proportional to the risk or harm on the whole? ② Do the legislative measures overlap each other in the objects and domain of regulation? ③ Is there a contradiction between basic concepts? Effectiveness of Legislation Midterm Evaluation ① Is it not a genuine retroactive legislation which change the completed legal effects of past actions or situations? ② Take any reparative measures for disadvantages suffered by the change of legislation? ③ Is the regulation intelligible, simple, and definite? ④ Require too high level of moral standards? ⑤ Endeavor to hear and reflect the opinions of those interested? Post Evaluation ① Does an average person understand the regulation contents easily and accurately? ② Do the people abide by the legislation? ③ Does the compliance result from the legislative instructions? Efficacy of Legislation Midterm Evaluation ① Is the causal assumption between goal and measure correct? Post Evaluation ① Do the results of legislation come close to the expected goals? ② Are there any other elements or factors which influence the legislative results? Efficiency of Legislation Midterm Evaluation ① Are the prospective benefits high in priority of social demands? ② Are the prospective benefits urgent and compelling? ③ Do the prospective costs have something to do with the detriment of constitutional interest or values? ④ Are the prospective side effects grave and serious? Post Evaluation ① What kind of benefits and to what extent did the legislation attain? ② To what extent did the legislation command enforcement costs? ③ Did the legislation cause damage to the constitutional interest or values? ④ What kind of side effects did the legislation yield?