미국 행정청의 집행재량(enforcement discretion)에 관한 법리와 시사점 ― 부집행(non-enforcement) 행정작용을 중심으로 ―
The Legal Theories and Implications of the US Agency's Enforcement Discretion : With Emphasis on Non-enforcement
In the U.S., there have been recent discussions about judicial review of enforcement discretion of administrative agencies, especially non-enforcement of statute for a certain period or under certain circumstances. This article examines what the “enforcement discretion” and its legal or logical basis are, analyzes the judicial review and administrative procedure of non-enforcement and finds implications for Korean administrative law. Enforcement discretion could be understood as comprising a wide range of discretion conferred on an administrative agency for law enforcement. It includes selecting the manner and extent of regulation, as well as determining the level of sanctions and timing for enforcement of the law. Although there is no explicit legal basis for enforcement discretion and the scope of enforcement discretion is controversial, federal administrative agencies are recognized as having the freedom to prioritize, allocate resources and enforce the law strategically. It is in deference to the agency's expertise and efficiency that enforcement discretion is recognized. Non-enforcement usually takes the form of inaction by agency ? e.g., delaying of enforcement or non-application of certain statute for certain period. In the Heckler case, the Supreme Court of the U.S. ruled that if Congress delegated discretion to the agency, it was presumed such inaction was not subject to judicial review. However, general, prospective non-enforcement is more controversial. Korea similarly faces limitation of the administrative resources, rigidity and abstractness of legislation, call for efficiency and needs to achieve balanced conclusion in individual cases. Accordingly, Korean administrative agencies also exercise non-enforcement discretion, but they perhaps do so in a roundabout manner - cloaked under the purposive construction of the statute. However, this roundabout manner might distort the purpose of legislation or render review of administrative discretion difficult. Instead, we suggest that a new rigorous procedural basis be built that will allow administrative agencies to exercise non-enforcement discretion explicitly.
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