신산업 규제혁신을 위한 행정절차에 관한 연구 — 규제샌드박스 법제 개선을 위한 특별법안 —

This study aims to provide a legal analysis of regulatory sandboxes, which grant various regulatory exemptions to new technologies and their businesses, and to urge the enactment of a special act regulating common administrative procedures across the current eight laws that constitute ‘regulatory sandbox legislation’ as a means to improve the legal framework. Considerable time has passed since the regulatory sandbox was introduced to academia and manifested in legislation, yet its legal rationale remains unexplained, and even earnest attempts to address it are hard to find. This situation could lead to misunderstanding the regulatory sandbox as something fundamentally new and distinct from existing regulatory innovation. While “flexible law” cannot be considered mainstream or dominant within our legal system, it has been consistently inherited and developed over time, and Regulatory sandboxes do not deviate from this long-standing tradition. The regulatory sandbox is precisely the result of applying this tradition of flexible law to new technologies and their associated businesses, which inherently carry regulatory uncertainty. Approaching it this way leads to the conclusion that while the concept of the regulatory sandbox should be limited in scope to cases involving new technologies and their businesses, there is no need to restrict the effect of regulatory exemptions granted through the sandbox to a specific range. For example, while demonstrating regulatory uncertainty is the most typical case for a regulatory sandbox, provisional or definitive regulatory exemptions unrelated to such demonstration can also be considered effects of the regulatory sandbox. This approach enables the logical justification of a so-called Korean-style regulatory sandbox, distinct from those in the UK, Germany, Japan, and others that use the concept solely for regulatory exemptions aimed at demonstration. Furthermore, it can provide a turning point to significantly enhance the practicality of regulatory sandboxes within our legal system, where regulatory reform is particularly challenging. Existing research on regulatory sandboxes has focused on the individual administrative actions constituting them, particularly the form and effects of the so-called Regulatory Innovation Trio. However, analyzing only the static aspects of the form and effects of administrative actions cannot provide any principle that legally captures how regulatory sandboxes actually operate. This requires a legal explanation of procedures that go beyond form and of effects that go beyond mere outcomes. The Regulatory Sandbox can be structured as either ‘statutory form’ (the so-called menu-style regulatory exemptions) or ‘discretionary form’ (most notably, the Regulatory Innovation Trio). Here, the appropriateness of either form is independent of the nature of the administrative action's effect (e.g., provisional regulatory exemption or definitive regulatory exemption). Rather, what matters is how far its effects should extend (this concerns the scope of effect, not the effect itself) and, further, how conflicts of interest arising within that scope of effect should be reconciled (this concerns procedure, not form). This dynamic approach to regulatory sandboxes has been scarcely addressed in theory or practice thus far. Yet, the reasons why certain regulatory sandboxes succeed or fail seem to lie largely here. The regulatory uncertainty surrounding new technologies and their commercialization can cause such widespread and severe social conflict that it could be termed a ‘wicked problem’. In this regard, the legal framework for the plan confirmation procedure under Germany's Federal Administrative Procedure Act and the legal principles governing the effect of plan confirmation decisions could serve as important references for our dynamic approach to regulatory sandboxes. A representative approach is to introduce administrative procedures ensuring maximum participation while enhancing overall procedural efficiency. This is achieved by partially offsetting procedural delays through measures such as limiting subsequent participation and appeal opportunities for those who fail to participate at appropriate stages. To establish the concept of regulatory sandboxes as described above and attempt a dynamic approach to them, it is necessary to enact a special law that governs regulatory sandboxes administered by administrative ministries under the eight laws corresponding to ‘regulatory sandbox legislation’. Currently, regulatory sandboxes remain merely tools for individual policies pursued by administrative ministries, making it difficult to expect unified operation of the entire regulatory sandbox system or the development of common legal principles applicable to all regulatory sandboxes. To enhance the practicality of regulatory sandboxes, their legal institutionalization is paramount. This requires establishing a Central Regulatory Exception Committee within the Office for Government Policy Coordination, similar to how the Central Administrative Appeals Commission is established within the Anti-Corruption and Civil Rights Commission and adjudicates cases under its jurisdiction. This committee would then oversee cases specific to its purview.