Research Report
A Legislative Study on Administrative Coercion
Ⅰ. Backgrounds and Purposes
▶ Increasing demand of the times on administrative compulsion(Verwaltungszwang) theory and legislation studies
○Administrative compulsion is a transtheoretical field which highly demands the clarity and specificity of its legal foundation as it significantly affects the rights and benefits of the citizen, difficult to abide the procedure in the execution process, and has limitations of its relief of right.
○ A recent dispute regarding legal foundation of each nation’s enforcement measures against COVID-19 became a momentum to newly recognize the legislative form that can justify administrative compulsion. Fundamental reexamination of legal foundations of newly adopted administrative compulsion as well as the existing administrative compulsion is now being demanded.
○Hence demand on theoretical and legislative studies regarding administrative compulsion is increasing. This not only includes the maintenance of the existing administrative compulsion which has not yet been scrutinized, but also re-examining each clauses regarding administrative compulsion along with the enactment of the General Act on Public Administration.
▶ Increasing necessity to examine and analyze the concept, range, and limitations of administrative compulsion
○ Debate on administrative compulsion can be largely classified into clarity and specificity issues of the legal foundations of administrative compulsion in the context of ensuring the right of the opponent of legal disposition, and adequacy issues of the function as means to secure effectiveness. Yet, limitations of legislation on general administrative compulsion clauses per se have not been sufficiently studied.
○ There lies a necessity to examine and analyze the concept, range, and limitations of administrative compulsion whether the legislation adequately applies theoretical discussions and whether the existing theories and positive law reflect the institutional necessity of individual legislation of administrative compulsion.
○ Studies on legislative form of administrative compulsion is needed by conducting comparison analysis on the field and circumstances of administrative compulsion as well as examining legislative form and means of administrative compulsion.
▶ Necessity of legislative studies in order to establish an independent legislative procedure of administrative compulsion
○ Administrative compulsion inherently has different characteristics from other general administrative actions because it is follow-up enforcement measures under a condition that citizens failed to fulfill their obligations except immediate compulsion(sofortiger Zwang).
○ Yet legislation on administrative compulsion is a field which comparably lacks legislative criteria due to its difficulties in compromising between securing clarity of legal basis and applying uniqueness of administrative compulsion.
○Thus, legislative studies should at least differentiate basis and the procedure of administrative compulsion with general administrative actions based on analysis of each individual law causes regarding administrative compulsion.
▶ Purpose of the study
○ This study analyzes legislative problems of the existing clauses that stipulate administrative compulsion, and further examines positive law on how debates on administrative compulsion are applied in legislation as well as how administrative compulsion theory can embrace various forms of administrative compulsion.
○ This study presents legislative criteria in case of legislating legal basis of administrative compulsion, suggests improvement plan of legislations that currently do not adhere to the legal principles of administrative compulsion, seeks measures that should be amended in the General Act on Public Administration by comparing the newly enacted clauses in the General Act on Public Administration and individual law clauses that regulate administrative compulsion written. It also aims to suggest amendment direction of the Administrative Vicarious Execution Act and the National Tax Collection Act.
Ⅱ. Major Content
▶ Theoretical background on administrative compulsion and analysis on legislation trend (Chapter 2)
○ This chapter introduces existing theoretical debate on administrative compulsion along with a comprehensive analysis on issues that have been consistently criticized from preceding research, and draws issues that should be examined in legislation regarding administrative compulsion.
○It analyzes the preceding research based on existing measures of administrative compulsion and the limitation of the current discussion in the context of the importance of examining measures to narrow the difference between the legal principles and the legislations of administrative compulsion that could possibly reflect the environmental change.
○ It additionally summarizes discussions regarding establishing law system of administrative compulsion, enactment of general laws, and the meaning of administrative compulsion clauses reflected in the General Act on Public Administration.
▶ Analysis of legislative issues through examining administrative compulsion regulations and organizing needful possible improvements (Chapter 3)
○ This chapter examines the current legislation circumstances and legislation form based on each measures of administrative compulsion. It further analyzes the legislation form and organizes into a system in which it can simultaneously examines the status quo and legal principle of each measures.
○ It classifies issues that require either legislative or theoretical discussions which are inadequate with content and form based on the characteristics of administrative compulsion. It later suggests fundamental direction for the improvement of the issues.
▶ Suggesting legislative criteria and directions in order to resolve legislative limitations of administrative compulsion (Chapter 4)
○It points out the limitation of the overall legislation process of administrative compulsion that the legislation of administrative compulsion fails to apply the unique characteristics of administrative compulsion. It also narrates the following problems in detail.
- It includes examples such as the fact that administrative compulsion and general administrative actions have been legislated as a whole without any differentiation, legislative criteria for each measures of administrative compulsion are not unified, the regulation density has no differentiation based on the circumstances of each administrative compulsion, legislation of administrative compulsion has not been classified, and the effectiveness of administrative compulsion has not been secured.
○Chapter 4 demonstrates that legislation regarding administrative compulsion is distinct from the legislation of general administrative actions because it has justifiable factors to legalize. This chapter further suggests detailed legislation criteria regarding administrative compulsion in order to resolve legislative problems.
▶ Suggesting improvement plan on laws regarding administrative compulsion (Chapter 5)
○ The General Act on Public Administration regulates clauses regarding administrative compulsion which seems to be applied as a legislation manual. Hence this study suggests direction of supplementation of the General Act on Public Administration so it can reflect the result of examination of clauses of individual law regulating administrative compulsion and harmonize with the individual laws.
○The General Act on Public Administration fails to stipulate its relationship with the Administrative Vicarious Execution Act and does not clarify the mutatis mutandis application of the compulsory collection provisions of the National Tax Collection while stipulating administrative compulsion. Hence it suggests amendment of both Acts within the necessary limit.
Ⅲ. Expected Effects
▶ Contribution in the development of administrative compulsion law through the mutual study of theory and legislation of administrative compulsion.
○This study can contribute in establishing legislation measures and theories of administrative compulsion by analyzing the principle law of administrative compulsion. This goes beyond the existing studies which simply view administrative compulsion as a measure to secure effectiveness of administration.
○ Administrative compulsion is theoretically important in administrative law, and thereby needs establishment of issues that currently do not accord with the legislation circumstances of positive law. This study can contribute in the development of legal principles to lessen the gap between the theory and the actual legislation.
▶ Conjugate as a basis of maintenance of legislation regarding administrative compulsion.
○ This study can be used as direct basis to amend current individual law regulating administrative compulsion because it diversely indicates problems of discrepancy between the individual law and general law principles and the contradiction issue regarding the legislation format.
○ It can be used as a basis of resolving limitations of individual law clauses as well when reorganizing follow-up laws regarding the General Act on Public Administration as it includes legislation manuals regarding administrative compulsion.
▶ Further applied as a legislative manual and establishment foundation of legislative system regarding administrative compulsion.
○ It secures unity and system of legislation on administrative compulsion by analyzing the current legislation circumstances of individual laws and clauses in the General Act on Public Administration that regulates administrative compulsion along with its theoretical background. Also, it suggests legislation criteria such as legislation form of administrative compulsion, selection method among various measures of administrative compulsion, and the limitations of administrative compulsion.
○ It can further contribute in establishing law system of each individual laws and setting systematic relation with the General Act on Public Administration by analyzing the amendment of the Administrative Vicarious Execution Act and establishing general legislation of administrative complusory collection that the General Act on Public Administration currently does not clarify.