입법권 위임금지법리로서의 법률유보 - 법률유보에 대한 헌법과 행정법의 정합적 이해 -

It is deemed that although a common forum for discussion has been formed in the areas of the constitution and the administrative law in connection with statutory reservation, particularly, the delegation of legislative power under Article 75 of the Constitution, there has been some failure to understand it organically. It is supposed that confusion about the validity of each of the delegation of legislative power and the delegated legislation arises from the fact that there has not been adequate distinction between the theory of statutory reservation and the theory of parliamentary reservation when the former has developed to the latter. Therefore, this paper aims to coherently investigate, through the existing discussions, the relationship between statutory reservation in the studies of administrative law and parliamentary reservation in the studies of the constitution, in terms of limitation on the discretion of parliamentary legislation in delegating legislative power and the problem of controlling the discretion of administrative legislation. And further, this paper tries to focus on the significance of the non-blanket-delegation doctrine in this context. The critical mind in this paper is whether the legislator is free to determine the allocation of power to the administration and the court, and whether a constitutional device of control over it might be needed, and domestic discussions about the judgments of the Constitutional Court are reviewed from that viewpoint. Although whether to delegate legislation is entirely left to the discretion of the legislator, it is supposed that certain conditions are required in order to ensure statutory reservation to secure democratic legitimacy, that is, to ensure parliamentary reservation to reinforce the guarantee of basic rights. Given the clue to discussion that German theory of essentialness was influenced by the US precedents, this paper compares the German theory of essentialness and the US non-delegation doctrine in order to look into particularly what are essentials that cannot be delegated and what should be intelligible. In the case of the US, they protect individuals’ freedom and rights by procedural due process because their constitutional provisions of detailed substantive rights are insufficient. This may seem different from the framework of discussion in Germany at first sight. However, it can be confirmed that historically the theory of essentialness in Germany was influenced greatly by the non-delegation doctrine and the intelligible principle in the US. The Federal Constitutional Court of Germany has also dealt with various relevant matters, including matters related to the vitalization of minimum basic rights, as essential matters, and it is confirmed that the Constitutional Court of Korea also shows the same tendency.