처분기준의 설정･공표와 신뢰보호

The Article 20, Paragraph 1 of the Administrative Procedures Act embodies the legal principle of transparency derived from the Constitution, which is emphasized in Articles 1 and 5 of the Act. Meanwhile this article has been treated very reluctantly, but Seoul High Court Decision 2017NU35945 decided August 17, 2017 recognized this principle obviously. The reason why the court was very cautious in deciding on the obligation of setting and promulgating adjudication standards has been that there is a tension between the demand for procedural fairness in the newly established Administrative Procedure Act and the nature of administrative rules. The administrative rule is characterized by its flexibility and situational adaptability. Since the Act prescribes to agency the obligation to publish the rules, it is self-restricted, with all the possibility of procedural control, but the benefits of flexible solution through administrative discretion may disappear. After reviewing comparative law, I suggest that sanctions and profitable disposition standards are should be treated differently in legal policy, because they are different in nature. It is also suggested that the degree of concreteness in setting and promulgating the standards should be relaxed rather than the various criteria used in practice, since these standards are considered to be mostly administrative rules. Furthermore, whether the disclosure obligation is recognized in the interpretation of Article 20 (1) of Administrative Procedures Act even when the adjudication standard is changed, depends on the degree of concreteness after judging the existing legislation. we believe that the effects of these violations of the duty should be limited to violations of the procedural fairness. Although we acknowledge such a relaxed obligation to setting and promulgating standard, the application of the amended standard should be restricted by the principle of protection of trust if an important part of the standard is changed outside the range of predictability. Finally, I believe that this approach will be an solution suitable for the nature of the administrative rule, loosening the formal application of the Administrative Procedures Act, which imposes strict procedural obligations.