행정처분과 근거법률의 간극에 대한 고찰- 환경, 에너지 영역을 중심으로-

The gap by the unconstitutional law would be based on the fact that some abstract provisions are placed in environmental and energy law since the consideration factors in discipline subjects are diversified and constantly fluctuate. The fact that the Constitutional Court of Korea rarely declares that the law which has general or abstract attributes is unconstitutional also contributes to extend the gap. To bridge the above gap, the legislature should tighten ex-ante control and the Constitutional Court of Korea has to strengthen ex-post control focusing on consitutional principles such as 'principle of ban on comprehensive authorization'. The gap based on illegal disposition sometimes results from administrative disposition contrary to the requirements stipulated by laws or regulations. The fact that the court is reluctant to revoke the disposition to maintain and enforce policies or systems would be another reason to broaden the gap. The solutions to fill up this gap are to establish subordinate statutes through democratic process, to ensure active participation of legal experts in the process of rendering administrative disposition and to guarantee the judgement according to consistent interpretation principles. The ex-ante control of the legislature and the executive and the ex-post control of the judiciary are mutually related. If the legislature and the executive follow the criteria that the judiciary has established through close analysis on the Constitution and laws, and if the procedure to reflect the opinions of citizens democratically and consistently is established, it would be possible to narrow the gap between administrative disposition and legal basis.