행정상 강제집행제도의 입법적 개선에 관한 고찰

Abstract

The system of administrative execution is a means to secure fulfillment of individual administrative obligations to ensure realization of public interests and legal execution by the state. Hence the system of administrative execution is one of the core elements that characterize the system of public law under the dual division of public and private law. Administrative obligations must be performed and a certain extent of administrative effectiveness must be ensured by means of compulsion of performance among others, in order to deal with failures to perform those obligations. Simultaneously, the rights of citizens must not be violated by abusive use of the rights of administrative execution. How to construct the system of administrative execution differs by histories and legal systems of each nation. Republic of Korea accepted the German legislation of administrative execution through Japan. Yet while Germany has secured a self-sufficient and complete legal system of administrative execution under general law, Korea uses a system that regulates mainly using individual law from a point of view that is protective of human rights, although it possesses some regulations pertaining to general law. Under the current legal system of administrative execution, non-performances of administrative obligations are, at times, not met with appropriate means of execution. The current system is also criticized of its lack of systematic structure as legislations are carried out individually according to different interests of government departments. Moreover, even under the individual legal regulations, the conditions and limits of administrative execution are often unclear and the control mechanisms of adjective law about administrative execution are at times insufficient. Therefore, legislative improvements are necessary in order to better protect the rights and interests of citizens. In order to improve the current legal system of administrative execution, this paper recommends that the legal justification, conditions and limits of administrative compulsory execution be clarified by regulating the fundamental principles and general provisions under general law, complementally specifying in a limitative manner the appropriate means to achieve the purpose of the legislation under individual laws, and establishing detailed regulations that consider the distinct content and purpose of individual laws.