행정입법절차의 시민참여 과제 — 시민참여를 위한 제도적 전제로서의 투명성 —

In Korea, the principle of parliamentary supremacy in legislation is constitutionally guaranteed. Accordingly, administrative rulemaking should, in principle, be limited to professional and technical matters within the clear and specific scope of delegation set forth by the National Assembly. This premise forms the foundation of both the Constitution and the statutory framework governing administrative rulemaking procedures. However, in legal practice, the importance of administrative rulemaking has been steadily increasing. Thus, rather than focusing on how to restrict administrative rulemaking, it is now crucial to consider how to ensure its procedural legitimacy. Among the various elements of procedural legitimacy, this paper focuses particularly on transparency in the rulemaking process as a prerequisite for meaningful public participation. From a comparative perspective, it is difficult to find another country whose institutionalized mechanism for public participation in administrative rulemaking is as passive and limited as that of Korea. The United States, which independently developed its own rulemaking system under the notice-and-comment procedure, Japan, which largely adopted the U.S. model, and the United Kingdom, which—although through a non-binding soft law framework—seeks to realize procedural fairness through consultation processes, all recognize the need for procedural control in response to the growing power of administrative rulemaking and institutionalize transparency in different ways. In the United States, despite the separation of powers between Congress and the President and the extensive delegation of legislative authority from a powerful Congress to administrative agencies, a transparent and effective procedural system has been established, supported by active judicial review. In contrast, the United Kingdom, as a parliamentary system, faces relatively less institutional necessity for procedural constraints on delegated legislation. Yet, as substantial policymaking authority has shifted to the executive, the UK has adopted a consultation procedure in soft-law form. Substantively, the British consultation process is more concrete and transparent than the American notice-and-comment procedure, and it allows reciprocal exchanges of opinion, thereby ensuring a higher level of public participation. However, due to the characteristics of the power structure and the non-binding nature of soft law, judicial review of procedural defects remains weak. Japan, although also a parliamentary system, has historically maintained a strong and opaque administrative structure. Nevertheless, despite its relatively late introduction of administrative rulemaking procedures, Japan’s current system is demonstrably more transparent than that of Korea. In particular, the Administrative Procedure Act (行政手続法) provides for institutionalized notice-and-comment procedures that ensure substantive information disclosure and public participation. Ultimately, transparency in the administrative rulemaking process is the essential precondition for effective public participation. For citizens to verify and engage meaningfully in policymaking through legislation, the transparency of administrative rulemaking must be significantly enhanced. Once transparent administrative rulemaking procedures are firmly established, enabling broader public participation, the government, together with the legislature, will be able to perform the function of mediating social conflicts and divergent interests in an open and accountable manner. The proactive administration of ministries possessing rulemaking authority should therefore be manifested not merely in the interpretation or application of existing statutes, but fundamentally within the rulemaking process itself.