자동적 처분의 행정법적 제 문제 — 처분의 형식･절차 및 구제에 관한 쟁점을 중심으로 —

The General Act on Public Administration, which has been in effect since March 23, 2021, explicitly allowed fully automated administrative disposition as it stipulated Article 20 on automatic dispositions. This Article has the main purpose of promoting the digitization of public administration by laying the legal basis for administrative disposition issued through a fully automated system. As a result, ‘automation of administration’ is not only categorizing computerization or partial automation of administration, but also advancing to a major form of public administration that encompasses administrative disposition by fully automated systems, including AI systems. “Disposition” in administrative law, is a key concept that penetrates the administrative law system, ranging from the administrative action law to the administrative relief law, and has developed the concept of disposition under the legal action law. The General Act on Public Administration also reflected the concept of disposition under the current law, which is consistent with the precedents and Article 2 of the Administrative Litigation Act. The concept of disposition is directly related to the scope and possibility of the relief of rights under administrative law. Therefore, the introduction of automatic dispositions has created issues that require reinforcement in terms of legal interpretation and legislation regarding the relief of rights as well as the forms and procedures of disposition. Prior to dealing with derivatives, it is necessary to clarify the extent to which fully automatic disposition is permitted by the General Act on Public Administration. Under the current law, automatic dispositions should be allowed on the premise that “legitimate” automated decision-making processing is technically possible without further human (administrative) decision-making or acts. The legality of the disposition must, of course, be met in terms of the content, procedures and formality. If a disposition relies on a fully automated system, it is necessary to explicitly stipulate exceptions for the possibility of omission or replacement of prior notice and reason presentation under the Administrative Procedures Act. In addition, it is important to explain and review the results of automated processing in order to substantially guarantee the procedures for relief of rights under the current law, such as filing objections and re-examination under the General Act on Public Administration and claiming liability under the State Compensation Act. The use of ‘autonomous’ systems beyond the level of fully automated system should also be prohibited, and the algorithmic impact assessment in the public administration sector that verifies the legitimacy and safety of the systems should be preceded.