재량행위에 대한 자동적 처분의 도입과 절차적 정당성

Article 20 of the General Act on Public Administration comprehensively prohibits automatic disposition. Nevertheless, if administrative authorities are able to enhance the controllability of AI (Artificial Intelligence) and secure its instrumentality, the use of AI in the realm of discretion cannot be regarded as constitutionally prohibited. The same reasoning applies to automatic discretionary disposition. It is unlawful only when the involvement of AI undermines procedural legitimacy, thereby infringing the principle of due process. This paper therefore examines the feasibility of introducing automatic discretionary disposition from the perspective of procedural legitimacy. The administrative use of AI is anticipated to improve expertise, efficiency, and integrity. At the same time, AI entails risks of privacy violations as well as risks arising from algorithmic inaccuracy and bias. Consequently, subjects of automatic discretionary disposition are placed in a procedurally disadvantaged position. Whether such disposition is permissible depends on compliance with the constitutional principle of due process. Its appropriateness should be assessed through a balancing of interests. To ensure procedural legitimacy, administrative authorities, including the State, must strengthen the fairness, accountability, safety, and transparency of AI. In concrete terms, automatic discretionary dispositions in administrative decision-making must comply with the duty to state reasons. In addition, the adoption of Appeals suit for performance of obligation is required in order to secure effective remedies for citizens and to guarantee the possibility of intervention by human judges. Furthermore, when administrative authorities employ AI, state liability for damages based on strict risk responsibility should be recognized. The degree of procedural legitimacy required is not uniform across all types of administrative acts. Adverse administrative dispositions demand a higher degree of procedural legitimacy than benefit conferring dispositions. From this perspective, automatic discretionary disposition is more suitable for benefit conferring administrative acts. In particular, subsidy conferring decisions involve monetary payments. They strongly demand efficiency, while also carrying the risk of corruption such as embezzlement and bribery. Accordingly, subsidy conferring decisions ought to be regarded as a particularly appropriate domain for the introduction of automatic discretionary disposition.