행정질서벌의 체계 및 법정책적 개선방안

The Administrative order punishment is a kind of administrative penalties imposed in accordance with the procedure of the 「Act on the Regulation of Violations of Public Order」 for violations of minor obligations, such as breaches of reporting, registration and parking duties in Individual Laws. The Administrative order punishment imposed as an administrative fine imposition under the present law is fundamentally different from the administrative punishment imposing penalties and is also distinguished from penalties on the 「Traffic Law」 and Penalty surcharge in terms of personality, and is also distinguished from the Enforcement fine, an administrative fine as a disciplinary punishment and an administrative fine as a legal procedure laws. Analyzing the contents of the 「Act on the Regulation of Violations of Public Order」 , a general law of the imposition of Administrative order punishment, it stated legalism of violations of public order which means no act shall be imposed a penalty for violation of order without law in order to secure the administration of the rule of law. However, the Act clearly requires subjective liability elements such as intention･negligence in cases of violation of order and requires the consciousness of illegality providing no an administrative fine be imposed in cases where there is a legitimate reason to misjudge the conduct of the person as legal. In addition, for the sake of responsibility, the reason for the exemption is provided for mental and physical reasons. In this context, the system of administrative order punishment and the establishment of a new phase is required in a situation where the distinction between the administrative penalties and administrative order punishment is relatively obscure. As a comparative law, we should refer to foreign legislative cases related to administrative order punishment and seek to the improvement plans on the law and institutional system in Korea. Specifically, it is necessary to rationalize the administrative fine imposition system above all so that an administrative fine imposition criterion according to the equality can be established by giving shape by type of the an administrative fine imposition acts and by appropriating the imposition criterion. In addition, it is necessary to rationalize the collection system that fits the characteristics of the administrative fine in order to enhance the effectiveness of the administrative fine imposition when referring to the relatively poor payment record of the administrative fine in comparison with the penalty. Lastly, for the purpose of guaranting the fundamental rights of the people, the contents of the 「Act on the Regulation of Violations of Public Order」 should be amended to apply the administrative litigation procedure to the imposition of the administrative fine by administrative authority so as to recognize the status of the administrative authority which imposed the administrative fine as a party to the administrative trial. It is also required to promote substantive legalism by actively utilizing the appeal litigation and the remedy of the party litigation accordind to the choice of the party.