행정입법에 대한 법원의 사법통제를 둘러싼 논의

Administrative legislation is a form of administrative action to establish general and abstract regulations by administrative offices. Administrative legislation has been gradually increasing due to the growing necessity of regulating technical and professional matters to properly cope with social changes. As a matter of fact, a number of the citizens’ right and duties are authorized to be regulated not only in the form of presidential, prime minister or minister decree but also in the form of administrative rule such as notice, directive, etc. Accordingly, the control of administrative legislation in violation of constitution and laws without authorization of upper level laws and beyond the concerned scope is one of significant matters of the science of administrative law. Paragraph 2 of Article 107 of the Constitution of the Republic of Korea provides for that “if it becomes the premise of a trial whether an order, rule or measure is violating the constitution or the concerned laws, the Supreme Court is entitled to inspect the issue for final decision”. Under such provision of the constitution, the Supreme Court is entitled to finally control an order or rule violating the constitution and upper level laws. In connection with judicial control for administrative legislation, Article 6 of the Act on Administrative Litigation only provides for the system of notifying the Minister of Security & Public Administration of the order or rule violating the constitution or upper level laws, and provides for nothing but rely on theories and precedents concerning its effects. If an order or rule is confirmed violating the constitution or upper level laws, court may refuse its application only to the concerned case but cannot declare invalidity of the concerned order or rule itself under the current legal system. At present, even though court decides an order violating the constitution or law, no following effective action is not made except simple notification to the Minister of Security & Public Administration by the Supreme Court and inclusion of the sentencing in the official gazette without detailed explanation, due to insufficiency in legislation feedback system. In conclusion, it is required to supplement the current legislation feedback system to ensuring that the Supreme Court’s rulings should be amended so as for each court to notify the Minister of Government Legislation or the chief of the concerned agency of the sentencing of unconstitutionality or unlawfulness, or Article 6 of the Act on Administrative Litigation should be amended so as to notify the Minister of Security & Public Administration, the Ministry of Government Legislation and other chiefs of the concerned agencies of the court’s decision for rapid supplementation of the concerned law.