行政節次法에 관한 硏究
(A) Study on The Administrative Procedure Act
행정절차법 행정절차 행정권;
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Contemporary states are expanding the scope of administration from keeping the order of society which was the passive function of modern legislative states into promoting the welfare of the people to improve the quality of life. And it seems obvious that those states strengthens the administrative authority which makes public power infringe on people's living on account of complex and various desire of the people and the change of administrative circumstance being specialized. In these changes, it was recognized that the administrative power being excessive and centralized could not be regulate only by substantial law which is general and abstract. And under the various form of people's desire and the construction of the constitution, it was impossible that we avoided the conflict between the administration for the people's rights and the legal regulation. Therefore, as we needed the regulation not only by the substantial law but also by the adjective law, we considered the way to keep both the greatest people's rights and the effectiveness of administration as an important subject of study of contemporary administration. The administrative procedure system guarantees the fairness and the pertinency of administrative decision through let the people take part in the process of administrative decision in order to prevent the interest of the people from being invaded by unjust and illegal administrative operation. The continental law states such as Germany which is the law-governed states understood that the core of administrative operation is the operation of power and that the people is the object of administration. And also they made much of the administrative function for public interest precedence. On that account, the states made an effort on the substantial constitutionalism in which the administrative authority exercised on the basis of the substantial law and the ex post facto redemption system (administrative adjudgment, administrative litigation, etc.) in which the lawfulness was guaranteed by the judicial authority. On the contrary the administrative regulation before the fact such as strict regulation and legislation of the administrative procedure was thought unnecessary because they thought that regulation in procedure was practically meaningless and also was against the effectiveness of administration. Because of the limitation of the regulation by substantial law and the fact that the invaded interest of the people could not be restored to the original state by the ex post facto redemption system (administrative adjudgment, administrative litigation, etc.) which was unjust and illegal and the waste of economy and administration was inevitably accompanied. Moreover, because the object of contemporary administration was too diverse, complicated and specialized to regulate administrative working by law one by one, the administrative discretion was expanded through introducing the principle of uncertainty. It made the invasion the interest of the people occur more often that these expansion brought about abusing the administrative power. On that account we should look for the more efficient and direct regulation device in place of the regulation by substantial judicature. Thus, in order to promote both the interest of the people and the administrative justice we considered the administrative procedure important which had the function of redemption before the fact. Since nowadays most states intend to be the welfare state and the administration become more complex, diverse and specialized, it is considered important to regulate administration in its procedure for fair, reliable and democratic administration in continental law states as well as british and american law states which make much of the procedure guarantee for people's right and interest on the basis of Natural Justice and Due Process of Law. As our states, being influenced by the continental law states, put value on the regulation in substantial law and on the judicial regulation, the importance of the administrative procedure was neglected because strict procedural regulation interrupted the efficient administrative operation. But keeping pace with the change of administrative circumstance, the discussion about the Administrative Procedure Act started on in 1960s, the audience or the public hearing was offered by a special law such as the Food Sanitation Act. After the arrangement of the Administrative Procedure Act in 1975, the announcement of the legislation was in 1987 and the law was promulgated in 1996, it took effect from 1998 as The Administrative Procedure Act. In 2002 The Administrative Procedure Act was amended and up to this day. In this paper, I review the principle and contents of the Administrative Procedure Act of the british and american law states and the continental law states such as Germany, through comparing with those I try to conclude the problem of our state's Act and to propose the improvement on that Act.