합의제 중앙행정관청의 조직법적 쟁점 ― 민주적 책임성의 관점에서 ―

While the concept of democratic legitimacy is multi-faceted one and highly controversial in public law context, the traditional constitutional law doctrine developed some forms of democratic legitimation of government institutions. According to the Böckenförde model of german jurisprudence, any governmental institution that exercise public power should be legitimised by three dimension of democracy, that is, functional-institutional dimension, organic-personnel dimension, and content-related dimension. The first criteria relates with the origin of a power, in the sense that whether a governmental institution is created by the Constitution or the organic statute of the Congress. In this context, a governmental organisation created by Constitution itself enjoys a higher degree of legitimacy than that by a statute. The second criteria requires that the public official exercising public power should be directly or indirectly nominated by the elected, democratically responsible representatives, that is the legislature or the President. These representatives should take constant control over the officials, so that the chains of democratic legitimacy remains unbroken. The third criteria claims the government officials implement the democratic wills of the people, by getting their rules from the Constitution and statutes, and by accounting and responding to legislature when required. The hallmark of our Constitution is the unitary executive system that claims all governmental officers exercising executive power should be subject to the control of the President who is the only nationally elected figure in politics of RoK, with the general control of the prime minister over the cabinet, which is composed of ministries whose jurisdiction and responsibility should be regulated by legislative statutes. But recently, some collegial committees created by organic statutes take the place of the traditional ministries of central government. Fair Trade Commission of 1994, Korea Communications Commission of 2008, Financial Services Commission of 2008, Nuclear Safety and Security Commission of 2011 are the examples of these independent regulatory committees. Meanwhile, deep skepticism persists over the democratic responsibility of these committees. Some of these collegial regulatory committees are exempted from the general control of the prime minister by their organic statutes and legislative control over the members of these committes other than the chairman are very weakened, in that they are not supposed to account and respond to legislature in spite of their equally shared value of vote. If the legislature wants to establish a independent committes replacing traditional ministries that is originally designed to take the jurisdiction and responsibility of public matter by our Constitution, it should be accompanied with overwhelming justifications to do that. And if these committes are to be exempted from the hierachial control of the prime minister, there must be another substitute securing the democratic responsibility of these committes.