인공지능 시대의 도래와 디지털화에 따른 행정자동결정의 법적 쟁점 ― 특히 행정기본법상 자동적 처분의 문제점을 중심으로 ―

The era of artificial intelligence (AI) is coming, and the administration is in the transition phase of digitalization. In accordance with digitalization and modernization of administration, Article 20 of the General Act on Public Administration enacted on March 23, 2021, also introduced a provision on ‘automatic disposition’. However, it is not clear whether automatic disposition is limited to fully-automated administrative actions, and whether these automatic dispositions also include powerful factual acts. It is desirable to define ‘completely automated administrative act’ in the title of Article 20 of the General Act on Public Administration. In addition, the provision that “includes systems to which artificial intelligence technology is applied” in parentheses should be deleted. This is not reasonable in light of the proviso to Article 20 of the General Act on Public Administration, which restricts automatic disposition to areas without discretion. In Germany, the dominant view is that self-learning algorithms are not subject to Article 35a of the German Administrative Procedure Act. Automated administrative decisions in the age of artificial intelligence threaten democracy and the rule of law, and democratic legitimacy must be secured in terms of procedures. Mass administration or automatic administrative decision using big data can seriously infringe on personal information or privacy. The coronavirus pandemic shows such a risk. It is tracking contacts digitally and monitoring contacts or quarantined people through the Corona-app. It is necessary to supplement the procedure provisions for automatic disposition. In some cases, it is difficult to apply the provisions of the Korean Administrative Procedure Act, such as hearings, submission of opinions, giving reasons and notification, to fully automated administrative actions. If these regulations are not provided, automatic disposition may be illegal due to procedural defects. It is necessary to reorganize the provisions of the General Act on Public Administration of Korea and the Korean Administrative Procedure Act to establish an exception to automatic disposition. When revising these regulations, care must be taken not to lose democratic legitimacy or distort procedural justice. In administrative litigation against automatic disposition, the illegality of administrative act should be reviewed in accordance with the general principle. The interpretation of Article 20 of the General Act on Public Administration is important in determining substantive illegality. Furthermore, it is also an important issue whether the state can be held responsible for damage caused by automatic disposition. This is the case when serious damage is caused by errors or biases in programs set by big data. In this regard, the theory of risk liability needs to be considered. Reasonable regulation or supervision of automatic disposal should be guaranteed, and a risk management system that considers unpredictable damage in advance from this point of view is necessary.