미국 행정법에서의 전자적 방식에 의한 규칙제정

Electronic Rulemaking, (e-Rulemaking), occasionally labeled as a “revolution” in the area of administrative law, is an institution with a potential to dramatically extend the people’s participation in both width and depth. Web 2.0, represented by SNS, not only provides the general public with ample opportunity to actively get involved in the policy-related processes, but also opens an agora where the regulated and the stakeholders can interact and communicate regarding the rules that have been or as yet to be made. Rulemaking 2.0 based on web 2.0 is also an agenda being discussed. The purpose of e-Rulemaking is to enhance democratic legitimacy, improve the quality of policy-making, reduce administrative cost and raise the regulatory compliances. Most importantly among these virtues, democratic justification is a concept that includes the formation of the process to submit opinions in interactive and deliberative modes, as well as increase the power to control the rulemaking of authorities responsible for due process such as Congress or the President. After all, it is a great advancement that people who were virtually compelled to remain silent due to difficulty in participating in the process of rulemaking are now granted opportunities to involve themselves in such a process. The development of information technology even changes the mode of participation in the rulemaking process. The people’s participation made possible by e-Rulemaking is an active involvement in the process. The public no longer stays in their passive roles, such as submission of opinion or, at best, taking part in negotiation in the rulemaking process. Instead, they actively take initiatives in proposing alternatives to existing or proposed laws and policies. e-Rulemaking must be a system that embraces those who have been alienated from the opportunity to voice their opinions in the rulemaking process, and their participation needs to be an informed involvement based on knowledge and understanding of the field concerned. Since e-Rulemaking reinforces the opportunity to participate in the rulemaking process with enhanced transparency, a greater legitimacy can be attributed to the rules enacted in such a system. Given that the rulemaking process of the administrative authorities should not be a sort of plebiscite lacking deliberation process, administrative authorities should not be overly restricted by the number of opinions submitted, but utilize them as a reference and keep conducting deliberations with the regulated beings and the stakeholders. In the past, the discussion on administrative legislation was concentrated on the statutory orders or administrative rules mainly in terms of formality of law or the criteria for differentiating definitions. Now that the public is more motivated than ever to seek participation in the administrative process and wide participation of the public in the administrative rulemaking is possible by virtue of recent development of information technology, however, equally necessary is to continue the discussion on how to enhance the legitimacy of the administrative legislation via participation of the public.