행정계획 통제체계 개선에 관한 소고 ― 법형식, 적법요건, 쟁송방식을 중심으로 ―

With the enactment of the 「Basic Administrative Act」, the concept of various forms of administrative action as an administrative function and basic matters regarding legal requirements and effects were codified. Subsequently, with the revision of the 「Administrative Procedure Act」, ‘administrative planning’, which had been considered a concept in academic circles, was established. The term was specified as an article in Article 40-4 and incorporated into the concept of positive law, and the sentencing obligation regarding the general procedure for establishing administrative plans was stipulated. The recent trend in administrative legislation seems to be to legislate the concepts, requirements, and effects of administrative actions in general. It is very necessary to establish a system of administrative planning legislation through legalization of the concept, requirements, and effects of administrative planning as a form of administrative activity. In the case of plans that directly affect rights or obligations (restrictions on rights and imposition of obligations) as well as plans that indirectly affect them, the legal basis and limits of specific delegation (prohibition of comprehensive delegation) must be strictly observed. do. However, in the case of administrative plans, the general principle of legal reservation is strictly observed in cases where rights or obligations are directly restricted, but in the establishment of administrative plans to secure the manpower and budget of the so-called administrative entities that indirectly influence, legal reservation is required. The agenda principle is being applied quite relaxedly, and in fact, it allows for a wide range of delegation as an administrative plan, which could lead to a situation that clearly contradicts the position of our precedents that adopt ‘the theory of reservation of important matters and the theory of reservation to parliament’. Ultimately, it is necessary to legalize the concept of administrative plans that affect the rights and obligations of citizens and to specify their detailed legal requirements, which ultimately means strict establishment of substantive and procedural control measures over administrative plans. Although the term administrative plan has been accepted into the Administrative Procedure Act, there is no definition of the concept, and as a result, discussions on the legal nature of administrative plan still have a valid meaning. There have been discussions about administrative plans, such as administrative legislation, administrative action, independence theory, and individual judgment theory, but considering the practical benefit of being subject to administrative litigation, that is, cancellation litigation, in terms of rights relief, administrative legislation excluding administrative action theory, independent judgment theory, etc. Seongseol, etc. did not have much meaning. Ultimately, the concept of administrative planning must be legalized to clarify administrative planning as a form of administrative action within the system of positive law and be incorporated into the precise framework of rule of law administration. In order to deftly break away from the framework of rule of law administration and resolve the chaos of administrative planning that has been used in various and expedient ways, the conceptual definition of administrative planning in the Basic Act on Administrative Services must be urgently defined. In addition, it is necessary to resolve the fundamental problem of the controversy over the legal nature of administrative plans, and to this end, it is necessary to establish a new means of judicial control over administrative plans. Discussions on legal requirements for administrative plans were focused on compliance with planning discretion or sentencing orders as content requirements, and collection of opinions from stakeholders as procedural requirements. Once the concept of administrative planning is established, ways to establish a system of legal requirements similar to administrative actions in administrative planning should be studied. In other words, the issue of subject requirements (administrative agencies (including public service trustees) under the current Administrative Procedure Act), the issue of content requirements (need to systematize and subdivide planning discretion issues), and the issue of formal requirements (issues of legal form of administrative plan, currently legislation) It is used in various forms, such as the form of administrative legislation, the form of administrative action, and the form of administrative factual acts, and is under judicial control according to the form. The goal is to establish a clear and formal system for procedural requirements (opinion collection procedures, proposal procedures, etc.), and labeling requirements (effectiveness requirements, new general requirements such as promulgation or notification and registration, etc.). An administrative plan that meets legal requirements must have the durability and be guaranteed, and this must be guaranteed to the other party to the administrative plan as a personal public right. On the other hand, the level of effectiveness of an administrative plan that lacks legal requirements must be determined, and in addition, the level of effectiveness of an administrative plan that lacks legal requirements must be determined, and There is also a need to specify the method of administrative disputes. In the current situation where there are no explicit concepts, definitions, and requirements for administrative plans, the effects of defects had to be viewed differently depending on their legal nature. However, after the concept, form, and requirements of administrative plans were legalized, the effects of defects It also needs to be organized consistently. The completion of rule of law administration for administrative plans will be realized through the guarantee of litigation rights, which will ultimately guarantee the existence of legitimate administrative plans and control the effect of illegal administrative plans by stipulating the form of litigation for administrative plans. It comes down to having a formal litigation system in place. There is a need to allow various types of litigation methods, such as general performance litigation, prohibition litigation, and confirmation litigation. In addition, in cases where it is practically necessary to guarantee the right to propose plan contents in the administrative plan establishment process, substantive provisions should be made in individual laws and regulations to enable disputes. With the improvement of the Basic Administrative Act and the Administrative Procedure Act, legalization and systematization of administrative action forms are being made, and the discussion on the improvement of the system, including the concept, requirements, effects, and means of litigation, of administrative plans is very meaningful, and is very meaningful for the nation, society, and private citizens. I believe that systematic maintenance and control of administrative plans, which have a significant influence on the government, will play a very important role in taking our rule of law administration to another level.