이은상, "The Enactment of the General Act on Public Administration in South Korea and Its Impact on Administrative Practice", Journal of Korean Law, Vol. 23, (2024.8), pp. 287-320.
<Abstract>
This article is mainly about the significance and limitations of the General Act on Public Administration (GAPA) in Korea and its impact on administrative practice. Whereas the Administrative Procedures Act is enacted and enforced as a general law governing administrative procedures in Korea, administrative substantive law has long been based primarily on uncodified sources, such as the general principles of administrative law that are formed from academic theories and precedents and exist in a scattered system of various individual statutes. In July 2019, the Ministry of Government Legislation took the initiative to enact the GAPA, which would codify the general principles of substantive law across the administrative sphere. An advisory committee was established to prepare the legislation, and in July 2020, the draft of the GAPA was submitted to the National Assembly; on March 23, 2021, the GAPA was enacted and promulgated. The enactment of the GAPA was the result of the combined efforts and experience of academia, the legal profession, and the executive branch over a period of about two years. The main contents of the GAPA are divided into the following categories according to the legislative purpose of each provision: provisions to improve the predictability of law enforcement, provisions to expand remedies for people’s rights, provisions to promote proactive administration and regulatory innovation, and provisions to improve the efficiency and uniformity of administration. The enactment of the GAPA is significant in the following respects. First, it realized the codification of administrative substantive law corresponding to the general principles of administrative law. Next, it was a starting point for the future enactment of a comprehensive general administrative code. Lastly, the enactment of the GAPA laid the foundation for the reform and development of administrative law in Korea. However, the GAPA is still incomplete as a general law on public administration, as many provisions were deleted during the legislative review process, and it needs to be amended to include additional provisions that are related to the matters that have been discussed during the draft deliberation stage and the matters to better protect the rights and interests of the public. In addition, although the procedural content of the GAPA does not directly overlap or conflict with the Administrative Procedures Act, when it comes to matters that are regulated by two separate laws, there is a problem of decentralization of regulations. There have been changes and impacts on administrative practice since the enactment and enforcement of the GAPA. First, in the legislative area, the GAPA provided the legal basis for the establishment of the National Public Administrative Legislation Committee and its continued existence, enabling it to regularly discuss the development of administrative statutes and regulations and improvements to the legal system. Next, in terms of changes in the administrative area, a behavioral norm of administrative action was established through the GAPA. Finally, in the judicial and trial areas, the Regulations on Administrative Litigation, as a Supreme Court regulation, were promulgated and enforced. The GAPA played the role of an adjudicatory norm in cases that have been filed to argue for the illegality of an administrative action, citing the relevant provisions of the GAPA as grounds for it. It will be necessary to continuously review the existing provisions of the GAPA that have been pointed out for improvement, to supplement and re-legislate those that have been eliminated during the draft deliberation stage of the GAPA, and to make additional amendments to protect the rights and interests of the public and improve the appropriateness of administration. Promoting the integrated codification of administrative law after the enactment and implementation of the GAPA is also a major challenge.
<Keywords>
General Act on Public Administration, Administrative Procedures Act, Regulations on Administrative Litigation, codification, administrative law.
이은상, "The Enactment of the General Act on Public Administration in South Korea and Its Impact on Administrative Practice", Journal of Korean Law, Vol. 23, (2024.8), pp. 287-320.
<Abstract>
This article is mainly about the significance and limitations of the General Act on Public Administration (GAPA) in Korea and its impact on administrative practice. Whereas the Administrative Procedures Act is enacted and enforced as a general law governing administrative procedures in Korea, administrative substantive law has long been based primarily on uncodified sources, such as the general principles of administrative law that are formed from academic theories and precedents and exist in a scattered system of various individual statutes. In July 2019, the Ministry of Government Legislation took the initiative to enact the GAPA, which would codify the general principles of substantive law across the administrative sphere. An advisory committee was established to prepare the legislation, and in July 2020, the draft of the GAPA was submitted to the National Assembly; on March 23, 2021, the GAPA was enacted and promulgated. The enactment of the GAPA was the result of the combined efforts and experience of academia, the legal profession, and the executive branch over a period of about two years. The main contents of the GAPA are divided into the following categories according to the legislative purpose of each provision: provisions to improve the predictability of law enforcement, provisions to expand remedies for people’s rights, provisions to promote proactive administration and regulatory innovation, and provisions to improve the efficiency and uniformity of administration. The enactment of the GAPA is significant in the following respects. First, it realized the codification of administrative substantive law corresponding to the general principles of administrative law. Next, it was a starting point for the future enactment of a comprehensive general administrative code. Lastly, the enactment of the GAPA laid the foundation for the reform and development of administrative law in Korea. However, the GAPA is still incomplete as a general law on public administration, as many provisions were deleted during the legislative review process, and it needs to be amended to include additional provisions that are related to the matters that have been discussed during the draft deliberation stage and the matters to better protect the rights and interests of the public. In addition, although the procedural content of the GAPA does not directly overlap or conflict with the Administrative Procedures Act, when it comes to matters that are regulated by two separate laws, there is a problem of decentralization of regulations. There have been changes and impacts on administrative practice since the enactment and enforcement of the GAPA. First, in the legislative area, the GAPA provided the legal basis for the establishment of the National Public Administrative Legislation Committee and its continued existence, enabling it to regularly discuss the development of administrative statutes and regulations and improvements to the legal system. Next, in terms of changes in the administrative area, a behavioral norm of administrative action was established through the GAPA. Finally, in the judicial and trial areas, the Regulations on Administrative Litigation, as a Supreme Court regulation, were promulgated and enforced. The GAPA played the role of an adjudicatory norm in cases that have been filed to argue for the illegality of an administrative action, citing the relevant provisions of the GAPA as grounds for it. It will be necessary to continuously review the existing provisions of the GAPA that have been pointed out for improvement, to supplement and re-legislate those that have been eliminated during the draft deliberation stage of the GAPA, and to make additional amendments to protect the rights and interests of the public and improve the appropriateness of administration. Promoting the integrated codification of administrative law after the enactment and implementation of the GAPA is also a major challenge.
<Keywords>
General Act on Public Administration, Administrative Procedures Act, Regulations on Administrative Litigation, codification, administrative law.