헌법상 기능적 권력분립론의 행정법적 수용에 관한 연구

Basically our Constitution is divided by Legislative power, Executive power and Jurisdiction, according to the theory of the classical separation of powers. And each power is left up to the different institutions. Our Constitution, Article 40 describes that “The Legislative power shall be vested in the National Assembly.” Article 66, paragraph 4 describes that “Executive power belongs to the government that accompanied by the President.” and Article 101, paragraph 1 describes that the Jurisdiction shall belong in courts composed of judges.“Despite these Constitutional provisions, today, individualism and liberal ideas which are the background of separation of powers is gradually weakening. According to the change from the representative democracy to the party democracy system, as a result, constitutionalism and parliamentary democracy fell in the crisis. Accordingly, the classic separation of powers system is greatly disturbed, the alteration became inevitable. In order to efficiently overcome special crisis facing modern nations, the modern nation has been changed to de facto administrative state. Therefore, the role to be performed by the executive power in the modern country has been greatly expanded. In addition, the administrative law on the legal relationship became complicated and diverse. For example, the increase of administrative legislation, the administration reserves theory, expanding the discretion of the administrative agency are the prime examples. In theory, under the mandate of the law, administrative agencies enacts administrative legislation, but today administrative agencies exercise substantial legislative, in its qualitative and quantitative aspects. Scholars suggest that administrative agencies have the authority of legislation that are legal effects. Further, when the courts review administrative action, the courts respect to the administrative decisions made ​​in the area of ​​professional and administrative policies. Today, the legal and social environment rapidly changed. Therefore, in this paper, the author proposes that the legislative, executive, and judiciary's authority should be readjusted, according to the characteristics with each of the institutions, and on the basis of the nature of state power. Also this paper proposes the standards needed to adjust to the new state power. Of course, the criteria presented in this paper has been presented in the domestic and international precedents and doctrine, were derived based on the contents of current issues.