행정절차법의 처분절차상 주요 쟁점 ― 절차보장의 확대를 위한 적극적 해석의 필요성 ―

Since the administrative disposition is subject to the administrative litigation, especially the appeal litigation, it is indispensable to examine the legality of the administrative procedure, which is a series of procedures that the administrative agency goes through when making decisions in determining whether the disposition is lawful. It is therefore necessary to understand the details of ‘the Administrative Procedures Act’(hereinafter referred to as ‘the Act’), which works as a general statute on administrative procedures, by stipulating common matters concerning administrative procedures. The administrative procedures have been institutionalized, thereby ensuring the fairness, transparency and credibility of the administration. In addition, at the same time, the protection of the rights of the people has been promoted. These are the products of the enactment of the Act. However, it is regrettable that the Act is so biased towards disposition procedure that it could not fully carry out the role of administrative basic law that covers the whole area of administrative procedures, when compared with that of Germany or the United States. Of course, such legislative position may be interpreted as the fact that administrative litigation has been strongly oriented toward revocation litigation. However, more positive legislative changes are required in the future. The most important parts of the Act, which prescribes the disposition procedure mainly, are presumed to be the prior notice of disposition, hearing, and declaration of reasons. In addition, there have been so much discussions over whether to recognize the disposition of refusal as a subject of prior notice, the extent of the reason for omitting seeking opinions such as hearing, the degree of declaration of reasons, whether to recognize the recuperation of procedural defect, the time permitted for the recuperation of procedural defect, and whether to recognize the procedural defect as a independent reason for revocation. The precedents have also been established along with those. These discussions fundamentally result in the problem of conflict and balance between procedural justice and administrative efficiency. And we can confirm that precedents take a considerable part of the efficiency of administration. Strict adherence to administrative procedures and ensuring procedural rights through it may seem to hinder the administrative or litigation economy at a glance. However, from a longer-term point of view, the administrative procedures contribute to the smooth implementation of administrative operation by standardizing and streamlining the procedures for administrative operation. And they can function as a proactive and preventive remedy by preventing unnecessary disputes through the persuasion of the people. Therefore, it is necessary to interpret and apply the Act more positively in order to expand procedural protection, considering such functions of the administrative procedures.