행정대집행제도의 문제점 및 개선방안 (The Problems and Improvement plansof the Administrative vicarious execution system)

서지정보

· 발행기관 : 한양법학회
· 수록지 정보 : 한양법학 / 30권 / 2호 / 1 ~ 26페이지
· 저자명 : 박효근

초록

Administrative vicarious execution refers to the enforcement of executive jurisdiction in which the obligor does not fulfill the obligation of alternative duties imposed by laws or administrative acts, and the disposition agency itself or a third party realizes its obligations and collects the expenses from the obligor.
Concerning the calculation of expense of the Administrative vicarious execution, it is required to establish concrete and reasonable standards to guarantee the transparency of the execution of the business in relation to the method of cost calculation and the scope of the actual cost. And It is reasonable to consider that it is necessary to accept the principle of executive suspension in the administrative litigation as in the case of Germany in terms of expanding the right of people 's rights relief.
In addition, unexpected damage can occur in the process of exercising the ability when the duty is resisted in the execution process of the administrative vicarious execution. Such a post - repressive manner is unfavorable to human rights and debates public confidence in administration. Therefore, it is necessary to restrict the exclusion of the inevitable minimum resistance by obeying the principle of proportionalism, since direct competence of the obligor is entering the stage of direct compulsion beyond the limitation of administrative vicarious execution.
Finally, in the selection of administrative compulsory means, the discipline centered on individual laws may lack a systematic link between individual enforcement mechanisms. Through the general law regulation governing each compulsory enforcement means, Clear rules for the interrelationships and priorities or selection criteria of individual enforcement instruments need to be presented. However, even if there is no grounds for enforcing in the individual laws, enforcement through general legal grounds may still result in the infringement of the rights of the people. Therefore, in the case where there is a specificity to be disciplined in the individual laws, it seems reasonable to supplement the general law through special regulation in individual law.

영어초록

Administrative vicarious execution refers to the enforcement of executive jurisdiction in which the obligor does not fulfill the obligation of alternative duties imposed by laws or administrative acts, and the disposition agency itself or a third party realizes its obligations and collects the expenses from the obligor.
Concerning the calculation of expense of the Administrative vicarious execution, it is required to establish concrete and reasonable standards to guarantee the transparency of the execution of the business in relation to the method of cost calculation and the scope of the actual cost. And It is reasonable to consider that it is necessary to accept the principle of executive suspension in the administrative litigation as in the case of Germany in terms of expanding the right of people 's rights relief.
In addition, unexpected damage can occur in the process of exercising the ability when the duty is resisted in the execution process of the administrative vicarious execution. Such a post - repressive manner is unfavorable to human rights and debates public confidence in administration. Therefore, it is necessary to restrict the exclusion of the inevitable minimum resistance by obeying the principle of proportionalism, since direct competence of the obligor is entering the stage of direct compulsion beyond the limitation of administrative vicarious execution.
Finally, in the selection of administrative compulsory means, the discipline centered on individual laws may lack a systematic link between individual enforcement mechanisms. Through the general law regulation governing each compulsory enforcement means, Clear rules for the interrelationships and priorities or selection criteria of individual enforcement instruments need to be presented. However, even if there is no grounds for enforcing in the individual laws, enforcement through general legal grounds may still result in the infringement of the rights of the people. Therefore, in the case where there is a specificity to be disciplined in the individual laws, it seems reasonable to supplement the general law through special regulation in individual law.

참고자료

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