Research Report
Research on a Legislative Model to Establish Administrative Planning Systems and Strengthen Executive Power
Ⅰ. Background and Purpose
▶ The expertise, complexity, mobility, and irreversibility of administrative functions lead to an increase in administrative legislation and discretionary administrative functions, and the area of administrative activities in which the administration is responsible for the people is further expanding (i.e. the drift towards an administrative nation).
▶ Although administrative planning is one of various forms of administration, it has not been actively dealt with in the field of mainstream administrative law theory because it is not an administrative act directly related to the rights and obligations of the people or a “disposition” subject to administrative litigation.
▶ Under the current legal system, there are so many diverse administrative plans that most administrative laws include more than one administrative plan, but it would not be an exaggeration to say that there are almost no legislative principles or standards related to the establishment of administrative plans.
▶ Administrative plans that are neither systematic nor effective within the legal order can lead to administrative waste and, ultimately, impose a burden on the people, which means that administrative plans cannot be overlooked simply because they do not directly affect the rights and obligations of the people.
▶ The purpose of this study is to identify problems in administrative planning-related laws, to derive measures for improvement so that administrative plans can be established systematically and become administrative functions with executive power, and to propose a legislative model designed to establish a system of administrative planning and strengthen its executive power.
Ⅱ. Major Content Items
▶ General theory of administrative plans
○ Concept of administrative plans
- “Administrative planning” is the establishment of “activity standards” in order to realize a certain order at a certain point in the future by comprehensively coordinating the related administrative means to achieve specific administrative goals based on professional and technical judgments about administration.
- As such, it can be compared with such concepts as statutory plans, national tasks, policy measures, basic policies, and so forth.
- Administrative planning is expanding to include the functions and roles of the means of administering grants, supplementing law-governed administration or legislation, distributing resources effectively, providing information, and coordinating interests.
○ Legal nature of administrative plans
- The legal nature of administrative plans corresponds to a discussionon whether administrative plans can be the subject of a general theory that penetrates all areas of administrative law.
- There are various opinions in academic theories and precedents regarding whether consistent establishment requirements, procedures, and effects can be established for administrative planning.
- In general, administrative planning is divided into binding administrative plans and non-binding administrative plans; in the case of the former, it is understood that there is no question that it has a dispositive nature, while in the case of the latter, the prevailing opinion is that it is necessary to review the legal nature of a given administrative plan individually based on its multifaceted nature.
○ Types of administrative plans
- Administrative plans exist in a wide variety of forms across almost all administrative fields, and can be divided into several types depending on the perspective. The most representative standard is to divide administrative plans into binding administrative plans and non-binding administrative plans depending on whether they affect the legal status of the people.
○ Contents of administrative plans
- The contents of administrative plans are the goals and means of administration, and the freedom of formation, in other words “discretion of planning,” which is widely recognized by the administrative entity that determines it.
- However, the freedom to form plans is not recognized unlimitedly, and the “order of balancing interest” is institutionalized as a control method to prevent violations of people’s rights.
○ Establishment of administrative plans
- There are no general regulations for the establishment of administrative plans, but a legal basis is required when determining important matters.
- The entity responsible for establishing administrative plans is the administrative authority, and the procedure for establishing administrative plans is separately provided in individual administrative laws. In particular, when establishing a plan for the implementation of a large-scale facility installation project, the process of coordinating various interests is very important, so a common or standard procedure for establishing some administrative plans is necessary.
- In the case of Germany, regarding the installation of some large-scale public facilities, it should be carried out in accordance with the “plan confirmation procedure,” if provided for in the relevant laws, and we can also refer to this.
○ Effect of administrative plans
- All administrative plans form a public law relationship for those involved in the plan, and they also have an internal administrative binding effect. In the case of some binding administrative plans, they have a direct effect on the general public.
▶ Current status and improvement plans for administrative planning-related legislation
○ Current status of administrative planning-related legislation
- As of May 30, 2023, for a total of 1,585 administrative laws, the type and number of administrative plans were counted by selecting those provisions that specify “○○ Plan” in the “title of the Article”. Administrative plans of the “comprehensive plan” type are stipulated in 128 laws, while those of the “basic plan” type are stipulated in 403 laws.
- We reviewed the regulations related to administrative plans limited to the jurisdictional laws of six ministries, including the Ministry of Science and ICT, the Ministry of Land, Infrastructure and Transport, the Ministry of Education, the Ministry of Health and Welfare, the Ministry of Oceans and Fisheries, and the Ministry of Trade, Industry and Energy.
- The investigation and review items include the nature of the base law that regulates the administrative plan, the person with the authority to establish and major establishment procedures, the existence of upper and lower plans and the relationship between them, the establishment cycle and supplementation procedures, the presence or absence of research on actual conditions, performance evaluation and feedback, the announcement of administrative plans, etc.
- Through the research on current status, we were able to understand that the purposes and functions of establishing administrative plans are practically diverse and that the scope of their actual effects is wide-ranging.
○ Improvement measures aimed at establishing the administrative planning system
- The establishment of the administrative planning system aims to establish vertical and horizontal relationships between administrative plans, to simplify the system by minimizing the duplication and complexity of plans, and to strengthen the hierarchy and linkage between different plans.
- Administrative plans are influenced by the nature and legislative purpose of the applicable laws. However, since - according to the legal systems in each field - the hierarchical structure of administrative plans is very diverse, it is difficult to establish general principles or standards.
- By selecting administrative planning in the national land field (i.e. national land planning) as a representative example in which the stage-based structure of administrative planning can be standardized and understood, legislative implications that can be applied to other fields are derived through the advantages and disadvantages of the national land planning system.
- As improvement measures for establishing the planning system, this study proposes the reorganization of the legislative system regarding planning and simplification of the planning system, differentiation of the planning stages, and the establishment of linking standards when establishing a plan or in the event of a conflict between plans.
○ Improvement measures aimed at strengthening the execution of administrative plans
- To improve the execution of plans, it is necessary to introduce new systems or reinforce the existing systems so as to strengthen expertise, democracy, and adaptability when establishing a plan.
- To strengthen expertise in planning, the professional review system and research on actual conditions must be activated.
- In the process of planning, it is necessary to ensure that the opinions of residents or stakeholders are heard in a substantive way so that it does not remain a merely formal procedure. In the case of projects to develop large-scale facilities, it is necessary to review the introduction of a plan confirmation procedure in order to process projects efficiently by involving the relevant administrative agencies and stakeholders extensively and ensuring that any decisions made are effective.
- In light of the administrative plan's function of complementing the legislation and its influence on people's lives, it is necessary to expand the procedure for announcing an administrative plan once it has been established.
- To strengthen the adaptability of administrative plans, it is necessary to stipulate the establishment period and the cycle of supplementations and changes made to administrative plans in the applicable laws, and to monitor the progress and execution of administrative plans, while a feedback structure that can evaluate performance post-execution and reflect it in the next plan needs to be institutionalized.
▶ Proposal of a legislative model related to administrative plans
○ For legislation related to administrative planning, it is necessary to review and agree on the need for stipulation, the concept and scope of administrative plans, establishment procedures, and changes to the administrative plan, etc.
○ It is difficult to define regulations on administrative plans as one type of legislation because the types of administrative plans are diverse and their nature and contents differ for each field or plan; but no matter how diverse the types, functions, and formats of administrative plans actually are, laws and regulations on the principles and standards required to establish administrative plans are necessary.
○ We intend to propose legislative content by dividing the general nature and individual specificity of administrative plans into general provisions and individual provisions.
- Regarding the general provisions, it is proposed to add regulations specifying essential legislative matters regarding administrative plans to the General Act on Public Administration and the Administrative Procedures Act.
- As for the individual provisions, it is proposed to establish a legislative model that can be referred to when reorganizing the regulations on administrative plans in each administrative law based on the jurisdiction of each law.
Ⅲ. Expected effects
▶ This study marks a departure from binding administrative plans, previously the main focus of normative studies, by expanding the subject to include the category of general administrative plans. It could be used as basic data for research aimed at supplementing and expanding existing administrative law theory in that it discusses problems and improvement measures related to strengthening the system and executive power of administrative plans within the administrative law order.
▶ This study could also be used as a reference for legislative practice related to the enactment and revision of the relevant laws in that it presents the major matters to be referred to when enacting laws on administrative planning as a standardized legislative model based on the current situation, in which almost all recent legislation is based on the establishment of administrative plans.