독일과 미국에서의 의회에 의한 위임입법의 직접적 통제에 관한 연구 ― 동의권 유보와 입법적 거부를 중심으로 ― (A study about the direct control of administrative regulations by the parlament in Germany and U.S.A)

서지정보

· 발행기관 : 행정법이론실무학회
· 수록지 정보 : 행정법연구 / 21호 / 23 ~ 73페이지
· 저자명 : 최정일

초록

The Korean Constitution provides separation of powers. It divides the power of government among three branches of government. But while the Korean Constitution creates separate executive, legislative, and judicial departments, it establishes no air tight compartmentalization of the branches. Instead, it sought to establish a system of checks and balances. The aim of this article is to examine the direct congressional control over administrative regulations in Germany and in U.S.A.
First, to bridge the gap between general policies and the details of their application, the German parlament vests executive agencies with rule-making power. According to article 80 GG, public bodies may promulgate regulations(Verordnungen) based upon the statutory determination of the instrument's objectives and substantial content. Administrative bodies thus enjoy delegated power to regulate details that the legislature need not have addressed.
In Germany, however, to control these administrative regulations. German Parlament (Bundestag) introduced the prior approval procedure of administrative regulations (Zustimmungsvorbehalt) and the German Federal Constitutional Court (Bundesverfassungsgericht) declared it constitutional.
Second, in U.S.A, like Germany, Congress began to vest executive agencies with rule-making power ― the authority to write rules or regulations, with the force of law, specifying how vague statutory directives should be applied.
As Congress delegated increasing rule-making power to the executive branch, it poredictably looked for new ways to oversee and influence the exercise of executive power. In particular, it began to rely increasingly on statutory provisions authorizing so-called legislative vetoes. In a typical statutory design, Congress would authorize executive rule-making but provide that the rules drafted by an executive agency could not take effect if either the House or Senate enacted a 'veto resolution' expressing its disapproval. The Supreme Court addressed the constitutionality of legislative vetoes in Immigration and Naturalization Service v. Chada (1983). The Court held the arrangement unconstitutinal. The Court reasoned that legislative veto violated the plain language and structural design (The Presentment Clauses and Bicameralism) of the Constitution.
Congress has in 1996 taken a step to reassert its authority over agency decisionmaking. A 1996 law requires agencies to submit all rules to Congress. for its review and stays the effective date of major rules to permit legislative review. If the joint resolution is passed by Congress and signed by the President, a rule will not take effect, or if it has already gone into effect because the 60-day expired, the rule will cease to be in effect.
The 「Korean National Assembly Act」 Article 98-2 provides now that agencies must submit all rules to the Korean National Assembly for its review. The Standing Committee of the Korean National Assembly examine them with respect to whether they are in contravention to the Acts, etc. The Korean National Parlament may notify the agencies of their contents.
In this article, it is suggested that the instruments of German and American direct control system over administrative rules by parlaments can and must be introduced to Korean legal system without the problem of being unconstitutional.

영어초록

The Korean Constitution provides separation of powers. It divides the power of government among three branches of government. But while the Korean Constitution creates separate executive, legislative, and judicial departments, it establishes no air tight compartmentalization of the branches. Instead, it sought to establish a system of checks and balances. The aim of this article is to examine the direct congressional control over administrative regulations in Germany and in U.S.A.
First, to bridge the gap between general policies and the details of their application, the German parlament vests executive agencies with rule-making power. According to article 80 GG, public bodies may promulgate regulations(Verordnungen) based upon the statutory determination of the instrument's objectives and substantial content. Administrative bodies thus enjoy delegated power to regulate details that the legislature need not have addressed.
In Germany, however, to control these administrative regulations. German Parlament (Bundestag) introduced the prior approval procedure of administrative regulations (Zustimmungsvorbehalt) and the German Federal Constitutional Court (Bundesverfassungsgericht) declared it constitutional.
Second, in U.S.A, like Germany, Congress began to vest executive agencies with rule-making power ― the authority to write rules or regulations, with the force of law, specifying how vague statutory directives should be applied.
As Congress delegated increasing rule-making power to the executive branch, it poredictably looked for new ways to oversee and influence the exercise of executive power. In particular, it began to rely increasingly on statutory provisions authorizing so-called legislative vetoes. In a typical statutory design, Congress would authorize executive rule-making but provide that the rules drafted by an executive agency could not take effect if either the House or Senate enacted a 'veto resolution' expressing its disapproval. The Supreme Court addressed the constitutionality of legislative vetoes in Immigration and Naturalization Service v. Chada (1983). The Court held the arrangement unconstitutinal. The Court reasoned that legislative veto violated the plain language and structural design (The Presentment Clauses and Bicameralism) of the Constitution.
Congress has in 1996 taken a step to reassert its authority over agency decisionmaking. A 1996 law requires agencies to submit all rules to Congress. for its review and stays the effective date of major rules to permit legislative review. If the joint resolution is passed by Congress and signed by the President, a rule will not take effect, or if it has already gone into effect because the 60-day expired, the rule will cease to be in effect.
The 「Korean National Assembly Act」 Article 98-2 provides now that agencies must submit all rules to the Korean National Assembly for its review. The Standing Committee of the Korean National Assembly examine them with respect to whether they are in contravention to the Acts, etc. The Korean National Parlament may notify the agencies of their contents.
In this article, it is suggested that the instruments of German and American direct control system over administrative rules by parlaments can and must be introduced to Korean legal system without the problem of being unconstitutional.

참고자료

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