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Research Report

A Study on the Improvement of Quality in Legislative Drafting
  • Issue Date 2020-12-31
  • Page 256
  • Price 9,000
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Ⅰ. Purposes of the Study 
▶ Changes in the environment of legislative legislation and examination
○ Legislation standards are the standard for the protection of constitutional principles, such as the establishment of a legal system for the implementation of the government's legislative policies and the system and legitimacy of statutes for the purpose of realizing and materializing the constitutional concept.
○ The policy stance of regulatory innovation, etc. and the enactment of the Framework Act on Administration are recent changes in the legislative environment, and changes and responses to the legislative draft and review standards are requested.
▶ It is necessary to prepare standards for legislation and examination for administrative innovation.
○ Implementation of the Framework Act on Administration is part of efforts to innovate the government, and it is necessary to change the standards for legislation and examination accordingly and to prepare new standards.
○ The purpose of this study is to present the direction of legislative practice through research on the contents and types to be accepted in the legislative draft and examination standards as a response to recent changes in the legislative environment.
Ⅱ. Main Contents 
▶ Changes in the legislative environment and issues of legislation standards
○ Implementation of the Framework Act on Administration
- Administrative statutes, which are the basis of the government's policy promotion and various system operation, have a significant impact on people's lives and business activities, and provide basic principles for the government's execution, but demand arises due to complicated systems and different regulations.
- Enactment of the Framework Act on Administration is carried out for the purpose of changing the system of administrative law centered on the people and the development of the rule of law, such as stipulating the basic principles of administration.
○ Changes in regulatory legislation
- In order to promote new technologies and new industries, enhance national competitiveness, and revitalize the national economy, the introduction of the regulatory sandbox system in 2019 introduces important regulatory measures and innovative legislative measures for regulatory laws.
- A drastic change in the legislative environment is expected due to regulatory innovation, such as the transition of a flexible legislative system, the suspension of regulations on demonstration projects, and the revision of the relevant statutes due to the expiration of the approval period.
○ Changes in the environment of innovative administration, such as positive administration
- In order to respond to the rapidly changing administrative environment, positive administration is requested in the form of innovative administration, and the discretionary limit of policy execution and system operation and whether positive administration is legislated is needed.
- In order to harmonize positive administration with the rule of law, it is necessary to prepare an environment in which positive administration can be activated from the legislative stage, and to establish the direction of legislative and legislative legislation.
▶ Issues concerning the enactment of the Framework Act on Administration and the enactment of related statutes
○ Administrative disposition
- The Framework Act on Administrative Affairs stipulated the principles of administrative disposition as well as the principles of administrative administration, proportional principles, and trust protection, which should be considered first not only in administrative disposition but also in the legislative stage.
- In the case of sanctions, the basic administrative bill does not contain the contents of the administrative bill, but it is important to burden the public. Therefore, it is necessary to review the principles of delegation legislation and the rule of law.
- The Framework Act on Administrative Affairs stipulated the so-called “fairness of administrative actions” and the contents of succession to the effectiveness of administrative disposition are not treated separately. Therefore, it is deemed necessary to review it on a separate basis.
○ Reasons for disqualification
- The reason for disqualification is that it is closely related to the entry regulation, and the details of the basic administrative bill are deemed to have stipulated the existing contents.
- Considering that the concept of accreditation and permission, which is used as a concept that is not unified under the law, can be directly related to the reason for disqualification, it is necessary to identify and define the concept of permission, etc. in detail.
○ Condition and term
- The Framework Act on Administration stipulates that the condition and term can be allowed to perform discretionary acts. The law and examination standards emphasize the relevance of the overpayment and unfair payment support rules. This results in the question of whether to allow discretionary acts.
- The review of whether a legal basis is required for discretionary acts is not mentioned in the Framework Act on Administration, but it is deemed necessary to determine the legal basis if the  condition and term restrict the freedom and rights of the people.
○ Automatic disposal
- The newly stipulated automatic disposition in the Framework Act on Administrative Affairs is assessed to have introduced the contents of the German Federal Administrative Procedures Act. In the case of artificial intelligence, controversy arose and it is deemed necessary to supplement it.
- The contents of the current basic administrative law may be considered to be less likely to cause problems directly, but additional legislative guidelines are needed to prevent violation of the lawful saving rules under artificial intelligence.
○ Penalty
- Review and analysis of fines have been accumulated sufficiently in the past, and the basic administrative bill believes that the appropriate model of the conviction has been legislated in the existing discussions.
- The basic administrative bill stipulates the actual and general matters of fines, and the interpretation of the penalty procedure or the cancellation of charges is a problem. If the law delegates the details to the enforcement ordinance without specifying the details, it is necessary to review the procedural matters.
○ Legal fiction of authorization and permission
- The Legal fiction of authorization and permission is a system operated for administrative convenience and the purpose of relieving procedural burden on the people. The basic administrative bill stipulates specific details not only on the actual standards but also on procedures and efficacy.
- In the case of government innovation such as positive administration related to national benefits, procedural notification regulations are needed even if the expiration of the effective period by the authorization. In such cases, positive interpretation of the statute may be controversial.
○ Report
- The basic administrative bill stipulates the nature of the report, which has been discussed in various ways, and it was promoted to resolve the passive administration caused by the repair of the report.
- The reporting regulations stipulated in individual statutes are inevitable, and there is a need to clearly distinguish between reports that have a notification characteristic and reports that require administrative repair. Discussions remain on whether to define the effectiveness, scope, etc.
○ Contract under public law
- It is positively assessed that the legal basis for contracts was prepared under the public law, which had a lot of practical discussions, but if individual statutes stipulate contracts under the public law, it is essential  to examine whether they are consistent with the basic administrative law and the national contract law.
- It is necessary to distinguish the details of the contract under the public law at the stage of legislation and to prepare a plan to prevent disadvantages caused by maintaining or releasing the contract if the parties become ordinary citizens.
○ Administrative compulsion
- It is understood that the basic administrative law stipulates the contents of administrative enforcement, which is based on individual laws, to control the infringement of people's freedom and property on a legal level.
- In the case of administrative enforcement in the recent social crisis, limits on basic rights are discussed, and it is expected that a separate review of the “urgent” and “level of administrative enforcement” should be made during the legislative stage.
○ Compulsory performance
- The enforcement penalties are discussed in detail in a number of legislative and Constitutional Court and Supreme Court cases, and the basic administrative bill can be regarded as defining the legislative model of the enforcement regulations stipulated in individual statutes.
- Considering the compulsory nature of the enforcement penalties, it is necessary to examine the appropriateness of the means or the association with the overpayment support rules in case of overlapping similar sanctions.
▶ Legislation of positive administration and legislation
○ History of positive administration
- positive administration began as an exemption system based on positive administration, which is an important part of government innovation in the Framework Act on Administration, and is now recognized as an important means of government innovation as an opposition to passive administration.
- positive administration is introduced as an important part of the basic administrative bill, and measures to reflect the environment of positive administration or legislatively promote active administrative legislation are being discussed during the legislative stage.
○ Efforts to institutionalize positive administration
- In 2009, efforts were made to expand the obligation of faithfulness under the Act on National Public Officials, and to actively perform duties of public officials through the rationalization of the licensing agenda and reporting system.
- Regarding the improvement of regulations, the “preferential permission and post-regulation” method is deemed to be a specific institutional effort on the spread of positive administration.
- Apart from the above-mentioned efforts, legislation of positive administration should be considered separately from the necessity, responsibility, clarity, etc. of the legal system should be considered.
○ Legislation and examination
- Unlike the rigidity of the law by more closely distinguishing between the matters prescribed in the legal stage and those prescribed in the subordinate statutes, it may be considered to legislate the positive administration indirectly by expanding the possibility of public officials in the administrative
- The mixing and uncertainty of terms that are being raised in practice in reporting, licensing, and designation are considered to be factors that cause passive administration, so legislation and legislation to resolve such confusion may be the basis for active administrative legislation.
- Mixed use of the licensing system can provide working-level officials with the cause of passive administration, so it is necessary to provide as clear a standard as possible during the legislative phase, which can be directly related to the administrative agency's discretion.
- A measure to determine the possibility of discretionary events based on the characteristics of individual statutes may be considered because the presentation of clear standards may encourage rigid licensing and act as a factor that hinders positive administration.
Ⅲ. Expected Effect
○ Enhancement of research results on the design and improvement of legal systems according to changes in the legislative environment
○ Providing legal-based principles for implementing policies in accordance with the enactment of the Framework Act on Administration