적극행정 실현의 헌법적 의미와 과제

Today, civil servants must have creativity and proactive attitudes in response to the rapidly changing public administrative environment. However, the politically dominated administrative culture and the chronic structural problems of bureaucratism are strengthening the passivity of civil servants in Korea. In these veins, the idea of proactive administration has been discussed and institutionalised as an alternative to overcome the current problem in Korean public administration. While the proactive administration policy has set a milestone through its legalisation, it needs more concrete scrutiny from a legal perspective. Namely, it will discuss whether proactive administration can be compatible with the existing legal system based on the constitution. Proactive administration should be understood in the meaning of Article 7 of the Constitution, which prescribes that the civil servant is a servant for the people as a whole. The constitution requires the civil servant’s commitment to the public interest. Understanding commitment to the public interest as a continuous process, the public interest is outlined by legislation but maximised by the administration. The boundary between public interest and abuse of state power is drawn by judicial law. In this realisation structure, the realisation of proactive administration can be seen as a voluntary ethical duty imposed on public officials beyond the legally enforced duty of fidelity. The statutes for proactive administration should be understood as a policy means to judificate moral areas, giving the nation a responsibility to promote and encourage individual civil servants to fulfil their duties for commitment to the public interest voluntarily. In this context, the current system of reprimanding passive administration to enforce proactive administration legally is likely to backfire. In addition, efforts should be made to prevent the policy of encouraging proactive administration from monopolising the realisation process of public interest and abusing the state powers. In particular, caution should be taken to ensure that the discipline immunity system for the proactive administration, combined with the state tort liability system for individual civil servants, is not abused as a means of justification or neglecting civil servants’ illegal deviations. In this context, the rule of law should monitor and control proactive administration; this function will be more critical in the future when more proactive and prompt administrative measures by the executive are needed in the current risk society.