부령으로 정한 제재적 행정처분기준의 법적 성질 및 효력에 관한 소고 ― 대법원 2010. 4. 8. 선고 2009두22997판결을 중심으로 ―

Many scholars have strongly criticized the attitude of Korean Supreme Court concerning the legal nature and effect of administrative disposition-standards for sanction written in the regulation of ministers. According to the attitude of Korean Supreme Court, administrative disposition-standards for sanction written in the regulations of the president are legislative rules(=Rechtsverordnungen), but administrative disposition-standards for sanction written in the regulations of ministers are interpretative rules(=Verwaltungsvorschriften). Besides, according to the attitude of Korean Supreme Court, the legalities of administrative disposition for sanction written in the regulations of ministers are judged not by the observance of the administrative disposition-standards for sanction, but only by the intent and intend of the empowering laws and their legalities are judged by only the legal theory about the boundary-crossing and abuses of discretionary powers. This study aims at the analyzing these decisions of Korean Supreme Court and the presenting the new directions for decisions of Korean Supreme Court about this problem.