「행정절차법」상 위반사실 공표 관련 법적 쟁점

The publication of violations was introduced through an amendment to the Administrative Procedure Act in 2022, but it still faces unresolved issues. Firstly, it is necessary to clearly define the scope of the publication of violations as outlined in that law. Until now, the publications have been categorized based on their purposes. Building upon this, it is essential to determine whether each publication falls under the category of a violation publication. Furthermore, it is crucial to discuss whether publications that do not comply with administrative guidance should be considered violations. Principally, administrative guidance does not impose an obligation. However, the publication adopts a structured approach where recommendations are made if legal obligations are not followed. In cases where the recommendations are not heeded, the publication of violations may be deemed appropriate. Secondly, the debate over whether the publication of violations should be recognized as an administrative disposition remains meaningful. The determination of whether the publication of violations is considered an administrative disposition has been based on the legal nature of the publication. However, it is challenging to universally determine the specific legal nature and whether it qualifies as an administrative disposition. Although the publication is known as a non-powerful factual act, the concepts of power factual act and non-powerful factual act are gradually becoming relative. Therefore, publication, which is a non-powerful act, can function as a disposition in certain cases: ① when a legal obligation is stipulated in the process of the publication of violation, ② when a disadvantageous disposition is expected due to the publication of violation. Lastly, the relationship between the publication of violations under the Administrative Procedure Act and its practical sector and its relationship with individual laws needs to be examined. While the publication of violations may specify the details to be disclosed, some individual laws may not address this aspect explicitly. Furthermore, there are differences between the publication methods stipulated in the Administrative Procedure Act and those adopted in practice. Thus, there is a need to review these differences. Furthermore, while the law stipulates that the publication should be maintained for a period longer than the initial publication when making corrections, the regulation of the publication period is limited to only a few cases in individual laws. These aspects can potentially affect the publication subject, making it reasonable to specify them in detail in individual laws.