행정기본법 제정 및 행정절차법 개정에 대한 평론 — 행정법이론체계에 대한 함의와 입법적 과제 —

One year after the General Act on Public Administration was enacted in 2021, the Administrative Procedure Act was amended significantly. Administrative law theories have been greatly impacted by the both legislations. And significant theoretical problems have been discussed about the General Act on Public Administration. The problems are as follows. ① In the General Act on Public Administration, the legislators adopted a litigatory concept such as ‘administrative disposition’ indeliberately.(§2, 4) ② The legislators defined the concept of sanction ambiguously and adopted dual concepts in reality.(§2, 5, §23) ③ The legislators specified §14① of the General Act on Public Administration inconsistently with the rulings of the Constitutional Court. ④ The legislators adopted the concept “de facto effects” which mismatches with the current administrative law Dogmatics. But, the English translation of the Act has not contained the concept.(§15) ⑤ The legislators defined balancing of interests as comparing all the disadvantages and all the public interests in the process of Revocation or Withdrawal of disposition. By doing so, they have lost their practical points and aims. (§18(2), §19(2)) ⑥ The legislators adopted the title “Withdrawal of Legitimate Disposition” for Article 19, But it is not consistent with the theoretical meaning of withdrawal of disposition. Moreover, though the legislators have assumed only prospective effects of withdrawal. withdrawal of disposition has retrospective effects sometimes.(§19) ⑦ The legislators have not permitted automatic disposition for discretionary administrative actions. However, It is not consistent with current administrative practice.((§20) ⑧ The legislators have not allowed raising objections to disposition by the third party of the disposition and restricted the application of the clauses for raising objections to disposition irrationally.((§36 (1),(3)) ⑨ The legislators made big mistakes in the clauses for Re-examination of dispositions. Many legal scholars consider the clauses as unconstitutional. In addition, In amending the Administrative Procedure Act, the legislators limited the possibility of administrative assurance only for the party of the disposition and not for the third party of disposition. However, It is not easily justifiable in the light of current theoretical understandng. Not only these theoretical problems, there are many drawbacks in the multiple legislation system of general administrative law. Overlapping and dispersed rulings are another significant problems. For these reasons, I recommend strongly the integration of the both acts into one code in the near future.