행정사무의 민간위탁으로서 지정과 본래적 의미의 지정의 구분 - 전기통신사업법상 번호이동 전문기관 지정의 성격을 중심으로 -

A rapid increase of administration demand in the 21st century and complexity of society issues have made it inevitably difficult to carry out the duties of administration by only national administrative system. Accordingly, the participation and cooperation of the private sector is important in performing administrative duties. Cooperation with the private sector is largely divided into two categories. First, it is to impose direct obligations to achieve administrative purposes on private sector such as delegation of administrative service to the private sector. Second, it is to regulate private economic activity in public law's method such as permission, patent, etc. which is not to impose direct obligations to achieve administrative purposes on private sectorDesignation which appears frequently in recent laws means notionally making sure of clearly pointing or granting particular qualification to particular person. Because it is interpreted not only methods of delegating of administrative service to the private sector but also entry restrictions on private economic activity, in some cases it is ambiguous to find which interpretation is appropriate. However, in that both methods are types of public administration performance for realizing the administration purpose and are carried out under specific legal basis and procedures, both have same side. But, both differ whether the nature of the subject is fundamentally administrative service or private service. In accordance with this distinction the scope and limits of the administrative supervision from government agencies clearly differ. Due to the convergence of public and private sector, the privatization of government functions and the expansion of the legal regulation of the private sector, it is not easy to distinguish between public administration service and private service. Nevertheless, it is appropriate to make clear distinction through the objective legal interpretation. If we do not this, even private service is subject to full control of public administration and excessiveness of public administration which is contrary to the principles of the market economy and the principle of private autonomy happens. Designation of number portability specialized agencies under the Telecommunications Business Law has a goal to achieve public interest such as expansion of customers' convenience and fair competition environment. Considering interpretation of the statute and legislative history, the service has the character of a private service and the designation is administrative action similar to permission, because a task that can be accomplished autonomously between business operators is carried out by specifying a particular person and making him to do it for policy reason.