미국행정법의 행정입법에 대한 집행전 사법심사에 대한 연구― Abbott 판결과 그 시사점을 중심으로 ―

This article focuses on the pre-enforcement judicial review of agency rule in U.S. Supreme Court’s Abbott case and subsequent cases. The Supreme Court has long held that an agency rule is not reviewable unless and until it is ripe for review. Until 1967, it was extremely difficult to obtain judicial review of agency before the rule was applied in a particular case because courts concluded that a rule rarely is ripe review unless and until it is applied in a particular case. That difficulty of ripeness standard had enormous practical effects. Most agency rules were never subject to judicial review. That situation changed dramatically with the Supreme Court’s issuance of its landmark opinion in Abbott Laboratories v. Gardner. The Court held the everytime rule ripe for pre-enforcement review by applying a new three-part test: (1) Is there evidence that Congress intended to preclude pre-enforcement of rule issued to implement the statute at issue? (2) Are the issues raised appropriate for judicial resolution at this time and in the abstract context of pre-enforcement review? (3) Would the petitioner suffer hardship if review were deferred until the agency’s application of the rule in a particular case allows the court to obtain a better understanding of the rule and its factual components. The Court stated the first step in the negative, rather than asking whether there was evidence that Congress intended to authorize pre-enforcement review. However, in its 1994 opinion in Thunder Basin Coal Co. v. Reich, the Court suggested that it was no longer interpreting the first part of the Abbott test as it did ar the time it decided Abbott. Therefore ripeness doctrine of judicial review of pre-enforcement of agency rule comprised of two-part test that is (2), (3) components at Abbott test. In its 1993 opinion in Reno v. Catholic Social Services, the Court suggested that rules governing eligibility for government benefits rarely would qualify for pre-application review because, unlike regulatory rules, benefit eligibility rules do not create hardships by imposing penalties on those who violate them. In the comparative law study viewpoint, judicial review doctrine of agency rule in U.S. is the abstract context control of administrative legislative instruments. On the other hand, Korea’s judicial review system of agency rule is the concrete context control of agency rules which is similar to pre-Abbott era U.S. system. The reason of Korean administrative litigation system is that concept of Korean agency action due to the that of germen administrative act, which is made up of agency’s concrete and individual act. So U.S. Supreme Court’s doctrine to control agency rule suggests that judicial review of agency rule in abstract context does not result abuse of action and restricts scope of that doctrine. The implication of the U.S. abstract context control of judicial review of agency rule provide Korean administrative law system for rethinking the jurisprudence of administrative act concept and reasonable litigation reform direction.