공법상 강행규정에 관한 연구 ― 재정법상 내부절차를 중심 사례로 ―

When the administrative agency violates the administrative law, it shall determine whether the relevant norm is a compulsory provision in terms of the effect of the offense. Today, even in administrative internal process such as consultations between administrative agencies, issues of illegality and legal effect are being discussed as important. In other words, the ‘Administrative Organization Act → Administrative Procedure Act → Administrative Action Act’ constitutes a series of step-by-step process under the consensus direction for the same purpose of final administrative disposition. The financial project process begins with a preliminary feasibility survey and consists of ‘establishment of basic plan → environmental impact assessment → establishment and approval of working plan → acquisition/compensation of land → government procurement contract or subsidy/contribution’, and ‘formulating and executing its budget’ for each stage. Consisting of a series of procedural actions at every stages, becomes an internal process for administrative disposition as the final execution of budget. Since the illegality that occurred in the internal process cannot be disputed immediately, if a subsequent disposition is issued, it is considered that the illegality has shifted, and therefore, it is necessary to contend over the subsequent disposition. Under the public law, the normative system is divided into compulsory provisions, directory provisions, and discretionary provisions. Violations of the compulsory provisions become illegal and invalid, whereas violations of the directory provisions are illegal but the defects have been healed. The core is the criteria for classifying the compulsory provisions and the directory provisions. If the process in the previous stage exists for the subsequent act, it becomes a subordinate process, and the violation becomes an independent reason for the illegality in the subsequent act, and the process in the previous stage If it exists for a purpose different from the subsequent act, it becomes an independent process, and the violation becomes only one factor to consider in determining the discretionary deviation or abuse of the subsequent act. The Supreme Court considers that the environmental impact assessment is a subordinate process and becomes an independent reason for illegality in the executing disposition of budget. On the other hand, the violations about preliminary feasibility survey are only an elements of judgment. However, preliminary feasibility survey and formulating budget also exist for executing budget and rather play a more important role than environmental impact assessment, so the violation should be viewed as violating compulsory provision, a more serious and subordinate process of subsequent act. In the end, the discussion of this study is about finding and evaluating compulsory provisions in the area that will ultimately result in administrative discretion.