KLRI : KOREA LEGISLATION RESEARCH INSTITUTE

I. Background and Purpose of Research

○ More than three years have passed since the enactment of the ｢General Act on Public Administration｣, which regulates substantive matters concerning principles of enforcement and administrative actions in the field of administrative law.

○ The ｢General Act on Public Administration｣ has been evaluated as a significant advancement in the administrative law system, as it has codified principles and standards of administration that had previously relied on theories and judicial precedents. It also unified common administrative systems dispersed across individual laws.

○ However, the enactment of the ｢General Act on Public Administration｣ has raised concerns regarding inconsistencies within the administrative law system. Ambiguities in distinguishing between procedural and substantive matters, overlapping or conflicting provisions with laws such as the ｢Administrative Procedures Act｣ and the ｢Framework Act on Administrative Investigations｣, and issues in legal interpretation and application have been identified.

○ Although these issues were raised during the drafting process, it was decided to prioritize the enactment of the ｢General Act on Public Administration｣ to address substantive matters established in theories and precedents. Integration with other general administrative laws was postponed for further in-depth analysis of the need, effects, and implications for the public and administration.

○ Therefore, this study examines the relationship and problems between ｢General Act on Public Administration｣ following the administrative legal system, and reviews the integration of general administrative laws for system maintenance.

 

Ⅱ. Contents

▶ Issues with the ｢General Act on Public Administration｣ and the Administrative Legal System

○ This study analyzes problems in the relationship between the ｢General Act on Public Administration｣ and the current administrative legal system to identify why restructuring and integration are necessary.

○ Specific issues examined including the legal status of the General Act relative to other laws, confusion arising from the separation of substantive and procedural regulations, overlaps and inconsistencies between the General Act and other laws, such as the ｢General Act on Public Administration｣ and the ｢Civil Petitions Treatment Act｣, edundant or contradictory provisions in the｢General Act on Public Administration｣ and the ｢Administrative Procedures Act｣.

○ The study highlights the need for restructuring of the administrative legal system considering theoretical, practical, and public service perspectives. 

▶ Regulatory Frameworks of General Administrative Laws in Major Countries

○ The study examines the regulatory frameworks of general administrative laws in Germany, France, and Taiwan, which follow the civil law tradition.

○ Unlike South Korea where substantive and procedural matters are addressed in separate laws, these countries generally integrate both aspects within unified administrative laws.

○ As observed in the cases of Germany, France, and Taiwan, there is a shared understanding that substantive provisions should be included procedural matters in the legislative process, and this recognition has been reflected in their legislative frameworks.

○ The study finds that integrating substantive and procedural matters into a single law enhances legal system coherence, simplifies the legal framework, and facilitates legal application and compliance.

○ While acknowledging the unique challenges of South Korea's legislative process, the current fragmented framework is deemed suboptimal for both administrators and the public.

▶ Proposed Strategies for Improving the Administrative Legal System

○ The study proposes a phased integration of general administrative laws, starting with the unification of the ｢General Act on Public Administration｣ and the  ｢Administrative Procedures Act｣, and the resolving conflicts or overlaps with other laws such as the ｢Civil Petitions Treatment Act｣.

○ Given the legislative challenges of immediately unifying the administrative legal system into a single comprehensive act like the Civil Code or Criminal Code, the study emphasizes a gradual approach that the first step would be to integrate the ｢General Act on Public Administration｣ and the ｢Administrative Procedures Act｣. 

○ Considering the necessity of legal system integration , the scope and sequence of the integration, jurisdiction, the structure and content of the unified law, additional provisions required for integration, etc., the study identifies potential issues for each provision in the proposed unified law and outlines a draft framework for its enactment.

 

Ⅲ. Expected Effects

○ This study is expected to provide a consensus on the necessity of improving the general administrative law system in the future and discussions and initiatives of the integration between ｢General Act on Public Administration｣ and the ｢Administrative Procedures Act｣.

○ The findings are expected to serve as a reference for drafting the unified legislation when starting the discussions of the integration between ｢General Act on Public Administration｣ and the ｢Administrative Procedures Act｣ and the system improvement between the general administrative laws.