행정입법절차의 민주적 정당성 강화를 위한 논의

Korean Constitution stipulates that the National Assembly plays not a monopolized but a central role in legislative process. It is based on the theory of functional separation that the National Assembly exercises its legislative power according to the legislative centralism because the demand for legislation is rapidly increasing today and the conventional formal separation of powers cannot cope with the modern society. At the same time, it is also difficult to deny that the importance of the executive branch is increasing in legislative practice in most countries where democratization has been established. The government's ‘legislation-related authority’ seems to be summarized as follows : the reduction of submitting bills, the explosion of administrative legislation, the tendency of the National Assembly, including the opposition parties, to strengthen control over administrative legislation, and the position of the academic world that generally supports it. The traditional understanding of the principle of separation of powers, in which the National assembly is likely to monopolize democratic legitimacy, and the limited and exceptional legislative power of the executive branch based on this understanding make it difficult to properly respond to the complex and diverse legislative demands of society. Based on these thought it is difficult to find a proper institutional solution for administrative legislation, which will inevitably expand in the future. We will have to face the fact that it is impossible for the National Assembly to realistically satisfy all the legislative demands of society, and start discussions to institutionalize the enactment and application of high-quality administrative legislation and the means of check on administration. The effective enactment and application of administrative legislation can be discussed in various contexts, but in order to overcome the argument that administrative legislation is an exception to National Assembly legislation, discussions centered on the system to secure democratic legitimacy within the administrative legislative process are desperately needed. Effective containment by the National Assembly and effective norm control by the judiciary are important, but it is necessary to ‘substantially’ strengthen the procedural legitimacy of administrative legislation in order to strengthen democratic legitimacy. Democratic legitimacy cannot be obtained only through the electoral process, and even in Germany, which had the experience of the Nazi state, the view to understand democratic legitimacy in terms of direct participation of the people, including stakeholders, is gradually gaining strength. A representative overseas system where democratic legitimacy as a procedural justice is well implemented in the administrative legislative process is the consultation process in the UK legislative process. If the UK's consultation process can be adapted to our situation, we will not only be able to effectively respond to social legislative demands, but also secure the legitimacy of administrative legislation.