위임입법의 헌법적 한계에 관한 고찰 - 헌법재판소의 위헌심사기준에 대한 분석 및 평가를 중심으로 -

In most states today, the administrative power performs a reinforced role with the necessity of quick, specialized and flexible legal action. A broader delegation of the legislative authority become increasingly in need and justified as the society changes into a more complex and diversified one. The legislature tends to delegate the legislative authority without serious and careful consideration. Rather the regulatory agencies of government have established real laws. Even if we feel the need to admit the delegation, it may violate constitutional principles like as Parliamentarism, Separation of powers, Rule of law. In any event, the legislative body should carefully consider the mission from the constitution and the guarantee of people's fundamental rights. Essential legislative powers have been reserved and protected from the administrative abuse. Article 75 of the constitution provides constitutional constraints on the delegation of legislative authority saying that it can be permitted only when concrete and bounds should be limited. Also, the constitution shows concrete examples of the doctrine of legal reservation here and there. The Congress should decide for itself the essential and fundamental contents about peoples rights and duties. Nevertheless, if the Congress delegate the legislative authority there should be necessary of the delegation and predictability. From this perspective, the constitutional court is deciding on the constitutionality of the delegation in cases. This paper deals with analysis and evaluation of the constitutional court's criteria of the delegation's unconstitutionality. Although, we should appreciate the great result of the constitutional court to the control of the delegated legislation, the constitutional court arouses criticism in some respects; the constitutional court's criteria lacks consistency, a proper balance between necessity and constitutionally limits of the delegated legislation is needed, concreteness and clarity of delegation should be applied consistently with the occasion, more active attitude should be took up to set up an accurate system of the administrative legislation. The constitutional court should make greater efforts to present the mission of the legislators and avoid an arbitrary decision of the executive.