Research Report
A Study on How to Improve Laws on the Regulatory System on Special Cases
Ⅰ. Background and Purpose
▶In principle, a country’s laws should be equally applied to equivalent cases, but there are cases in which laws are required to be applied only to specified people, regions, cases, or period. Such laws are called special laws, and there are many regulatory formats such as laws on special cases or laws on special measures, etc.
▶These special laws are normative means importantly used in the process of putting the nation’s diverse policies into practice. Recently, there are many of them enacted.
▶The said laws have something in common. They are about special matters or exceptions to ordinary laws, which stipulate underlying principles. They highlight their characteristics as special ones in a large framework, but there are no principles or criteria per se set for them, nor are there particular studies carried out concerning them.
▶This study intends to focus and shed light on the inherent nature and normative characteristics of the laws on special cases, which have been recognized as a regulatory framework similar to special laws, and come up with a way of improving laws on special cases on a working level, so that their functions may be exerted properly.
Ⅱ. Major Content Items
▶ Normative basis of the laws on special cases
○Laws on special cases deal with ① special exceptions to ordinary contents in a narrow sense, and refers to “special” handling or highlighting specific contents in a broader sense.
○The laws on special cases are enacted in the following cases: ① where it is not appropriate to apply a law to a specific case or where it is not clear whether a law can be applied to a case; ② where there is a need to meet a legal mandate flexibly; or ③ where it is necessary to meet a mandate concerning a government policy promptly and on a short-term basis.
○Ways to enact “the laws” on special cases include ① composing the names of the laws such as the Special Act on …, or the Act on Special Cases concerning …, or the Act on Special Measures for …., or the Act on specific…, and ② incorporating “specific provisions” such as special cases concerning …. in a law regardless of the names of the laws.
○The laws on special cases and special cases concerning specific matters have been found in a variety of matters including civil/ criminal/ administrative domains and their amount is increasing rapidly. As of September 2022, there are a total of 197 special laws (i.e. 129 special laws, 36 laws on special cases, 23 laws on special measures, & 9 specific laws) and 1,740 laws with provisions on special cases.
-“Special laws” are found in all sectors. According to a related survey, out of 36
○“laws on special cases,” there are 21 (58.34% out of laws on special cases) of them concerning the Civil Act and the Criminal Act (of which 10 (27.78%) concern the Civil Act and 11 (30.56%) concern the Criminal Act).
▶ Major controversial points on the laws on special cases
○Cases of enactment of the laws on special cases include ① those where there is a need for “exceptions” to the principle or ② where there is a need for “special” handling of cases without regard to the principle.
-There is a clear existence of the laws acting as the principle in the laws on special cases concerning civil or criminal matters. Thus, laws on special cases concerning them clearly display characteristics as exceptions to the original law.
-As for the laws on special cases concerning administrative matters, they are highlighted for their characteristics as special laws due to their need related to what the regulatory authorities should do. Many of them stress the need for a special treatment of specific cases concerning related government policies.
○Generally, there are no set principles or criteria concerning the matter of whether ① to set the special treatment as a norm, ② enact a new law, or incorporate it into an existing law as a clause to become a norm, when making it a special case. Such a matter is discussed as a matter of freedom of legislative formation (legislative discretion) as part of legal theory.
-There is a need for criteria governing to what extent freedom of legislative formation should be recognized, but there is no general principle about it. We can better grasp such a matter through the tendency of precedents in specific cases.
-In the recent legal environment taking shape in the “Fourth Industrial Revolution” and new technologies, we can see characteristics such as rapid changes, uncertainty, diversity and convergence, etc., and laws on special cases are used positively as a legal framework to cope with them.
○Freedom of legislative formation concerning the laws on special cases cannot be unconditional and indefinite. It should ① correspond to systematic consistency of the Constitution or laws (i.e. its limitation as to content) and ② be fit for legislative technique-related conditions (i.e. its limitation in form).
-It is necessary to make it easy for the general public to accommodate the system of laws on special cases by making the following known where applicable: The purpose of enacting a law on special cases, whether there exists a law serving as the principle being a person or entity subject to special cases.
▶ How to improve the system of the laws on special cases
○Improvement of the system of the laws on special cases needs to include the following: ① Abolition (or conversion to ordinary laws) of the laws on special cases or provisions about special cases in laws or ② the establishment of a new principle through coordination of a substantial relationship between the laws serving as the principle and the laws governing exceptions.
-There are opinions insisting on turning the laws on special cases or the special laws into ordinary ones, but it is highly difficult to set relevant principles and criteria.
-As preconditions to improving the system of the laws on special cases, the need for and the function of special cases should be recognized and warnings about their abuse should be taken.
○As for the desired directions of improving the laws on special cases ① where such laws are enacted, they should be laws on special cases if possible when civil or criminal matters are concerned, and they should be special laws concerning administrative matters. ② With regard to provisions on special cases in laws, what needs to be done is just the compliance with the ordinary principles of legislative technique for defining the relationships between principles and exceptions clearly.
○What is discussed here may be relegated to just an armchair contention if the following is not fixed: Who (i.e. key actors of promotion) will push forward with the improvement of the said system and how will the direction of advancement proceed from a perspective of legal theory. Thus, it is more urgent to engage in discussion on how to improve the system and its application on a working level.
-It is suggested that additions/ supplementations be made through amendment to the National Assembly Act, if a new system of the laws on special cases is adopted, so that a review can be made more discreetly and professionally.
-It is necessary to understand the relationships between positive administration and special cases, strengthen the role of the Ministry of Government Legislation, and have those in relevant sectors devise a manual on relevant special cases for those who need it.
Ⅲ. Expected effects
▶This study attempts to touch on the legal theory on “the laws on special cases” distinguished from the special laws by focusing on their inherent significance, nature, and legal technique-related characteristics rather than on the types corresponding to special laws. As such, this study may be viewed as an auxiliary study attempting to complement previous studies on special laws, with this study intended to serve as referential material regarding matters that possibly present obstacles at the working level for people enacting special laws or laws on special cases or laws with special provisions.