規制와 制裁法理에 관한 實定法의 分析的 硏究

Natural freedom of individuals are regulated to realize certain administrative purposes. Administrative regulations guarantee the effectiveness of regulations by imposing correspondent sanctions when individuals act against them, since they are normally under the control of the legality. Regulations and sanctions are applied for the proportionality that they should be minimized according to the constitutional principle. Therefore, although the lawmaking-political aspect (that which controlling methods should be chosen as a type of the freedom restriction) has to be concerned, there is the restriction that the proportionality should be applied for the necessity and the degree of regulations, in order to realize the common good. The problem is that in the positive law, the allopathic solution is chosen as a restrictive method without reasonable consideration for the relation between the restrictive methods and the degree of regulations, even though the proportionality should be applied for their relationship in order to realize a certain administrative purpose. The problems and solutions through the analyze of the positive law are like below:First, there should be correspondent sanctions against the violations since the declaration as a type of imposing the intentional obligation is a legal obligation. However, there is a lack of restrictive regulations in the real positive laws, so it can be criticized that arbitrary regulations are imposed as a restrictive method (e.g. imposing the administrative punishment). In addition, it is considered excessive that imposing the administrative punishment as a restrictive method, regarding the necessity of regulations and the degree of violations. The declaration as a clearance type of the declaration under reserve are practised as an eased restrictive form for the permit system of its clearance form by taking the same lawmaking structure with the permission. However, it is not suitable for the principal of the regulation law, if the clearance form of the declaration under reserve and the declaration as the intentional obligation imposing form are regulated in the same text or are imposed the same degree of regulations, as lawmaking mistakes. Therefore, regulations should be imposed in different ways when the restrictive forms vary from one another. Also there is a need of unifying positive law terms and academic terms so that confusions due to the discordance of the terms can be avoided if possible. In conclusion, each positive law should maintain the reasonable proportional relation of the restrictive methods and the degree of regulations. Therefore, there is a need of introducing the general legalization with the purpose that confines a certain range on the degree of regulations up to the type of regulations.