방송통신심의위원회의 시정요구에 대한 행정법적 고찰 - 행정주체론과 행정지도론을 중심으로 -

Korea Communicaitons Standards Commission(KCSC) was established according to Establishment of Korea Communications Commission Act. However, this act does not specify substantive enactment regarding the KCSC’s legal position. Accordingly, there exists a debate on whether the committee is an administrative agency or non-governmental self- regulatory organization. Foremost, according to the organization law, it is hard to conceive it as an administrative agency. On its functional side, however, it can be seen as an administrative agency as it is a public entity that is entrusted with and perform administrative authority. According to Administrative Procedures Act and Administrative Litigation Act, any public entity and private person who are entrusted with and perform administrative authority are administrative agency. For KCSC, because several things, it can be said to be entrusted with administrative authority. As a means of contents regulation, KCSC utilizes administrative restriction and request for rectification. There is a debate on whether the request for rectification, that KCSC uses as a contents regulation, is an administrative measure in its legal sense. Administrative measure is defined as: an administrative agency’s act under the public law that sets up a certain rights according to the regulations, gives an obligation duty, or causes extra legislative effects on particular cases which directly change the people’s specific rights or obligations. Regarding the legal sense of KCSC’s request for rectification, lower instance precedent once decided that it is an administrative measure that is subjected to appeal litigation. However, when not complying to KCSC’s request for rectification, only an administrative measure of future restriction is applied while no legal obligation is imposed. This is equivalent to the administrative guidance where it prescribes the request for rectification as an administrative procedure that must be carried out before an administrative measure takes place. Hence it is appropriate to see KCSC’s request for rectification as an administrative guidance. The only problem that arises if KCSC’s request for rectification is considered as an administrative guidance is a method of remedying the violated rights. There exists an appeal system for rectification which presents a procedure to go over the legitimacy of the administrative guidance. However, it is more appropriate to comprehend the concept of administrative measure, that is subjected to the appeal litigation, according to the dispute law theory. Therefore, to remedy the basic rights thoroughly, it will be more appropriate to include the committee’s request for rectification, which is an administrative guidance, to the appeal litigation’s subjects.