행정각부의 법해석권과 정부입법 ― 저작권법 제1조의 입법목적을 중심으로 ―

Science of administrative law in Korea has developed mainly legal hermeneutics based on Dogmatik. In other words, to this day legal interpretations of courts have been main objects of science of administrative law. In specific ruling cases, to rely only on positive laws may lead to absurd results. At this moment we are expected to move to de lege ferenda. However this should not be positively sought after by courts. More and more administrative mission is increasingly expanding and at the same time administrative legislation is thoght one of the most important type of administrative actions. It is a matter of universal knowledge that simply executing laws is not only mission of administration. It has to perform its missions more actively and autonomously. This is the very place where administrative legislation stands on. Today it is thoght to consist of two types, legal orders and administrative rules. Furthermore subjects regarding introducing bills by the Executive, which is en effet the core mission of the Executive Ministries, have not been rarely researched in the area of science of administrative law. That in its turn shows that administration has legal power of administrative legislation based on authoritative interpretation and this authority surly includes introducing bills, which should be object of science of administrative law. Having above-said, we can make our way to subjects of interpreting Art. 1 of the copyright act and making laws including introducing bills. Apart from other articles of the act, article 1, the purpose article, is the object of interpretation, of which administration has preferential and positive power. Even when courts perform teleological interpretation facing concrete cases, they are least likely to do it having such a active stance. They just interpret concrete clauses on the assumption that purpose article has certain meaning rather than interpreting the very purpose article. On the other hand administration has authority to interpret purpose clause analytic and in-depth as well. Moreover administration may of its own accord move to legislation and when required, it should. Specifically art. 1 of the copyright act has two kinds of conflicting intermediate objectives on the surface and one final objective saying contributing to the improvement and development of culture and related industries. Here it is argued that by considering the final objective on the active basis and interpreting provisional two objectives more flexibly, administration should reflect it to the administrative legislations including introducing bills if necessary.