행정권한 민간위탁의 헌법상 한계

Delegation of administrative authority to private parties is a necessary means for a person who is not a civil servant to exercise administrative authority exercised by civil servants. In this way, civil servants can concentrate on relatively important office work, which not only promotes the efficiency of organizational management, but also can improve the economic efficiency of administrative affairs if the civilian expertise and competitiveness are appropriately utilized. The problem lies in the extent to which delegation of administrative authority to private parties can be expanded. Recent legislations are in the trend of expanding delegation of administrative authority to private parties to areas that have a great influence on basic rights. However, whether the enlargement of the scope of delegation of administrative authority to private parties is allowed by the Constitution has not been seriously examined so far. This study examines the principle of reservation to civil servants, the principle of reservation to the law and the principle of due process of law as limitations on delegation of administrative authority to private parties from a comparative legal point of view and examines what practical meaning they have in our legal system. The conclusions of this study can be summarized as follows. First, from the principle of reservation to civil servants, the proposition is inferred that, in principle, affairs directly related to the rights and duties of the people are carried out by civil servants, exceptionally, in order to be carried out by non-civil servants, there must be justifiable grounds and it should be able to supervise appropriately by civil servants. Second, from the principle of reservation to the law, the proposition is inferred that, if non-civil servants exercises administrative authority, because the necessity of objectively controlling the exercise of discretion is relatively large, comprehensive authorization should be prohibited accordingly. Third, from the principle of due process of law, the proposition is inferred that, when administrative authority is exercised by non-civil servants, compared to when it is exercised by a civil servant, the other party or a third party should not be placed in a disadvantageous position in administrative procedures and administrative remedies. In light of the above limitations of the Constitution, legislations delegating administrative authority to infringe on fundamental rights to non-civil servants should be reconsidered at the origin or improved to minimize side effects.