Transcript 슬라이드 1
KOREAN ADMINISTRATIVE LAW: CHRONOLOGICAL DEVELOPMENT Prof. Choon-Hwan Kim College of Law, Chosun University, Korea I. INTRODUCTION Modern Administrative Law in Korea Since 1945 when Korea was emancipated from Japanese Occupation Contribution to implementation of the high-growth policies Radical changes along with convulsions of Korean society II. ORIGINS OF KOREAN ADMINISTRATIVE LAW The Era of Japanese Colonialism Japanese adaptation of German law Mere instrument of exploitation and justification of a systematic destruction of traditional Korean society Main purpose of legal education was to train bureaucracies. Law became synonymous with colonial oppression. III. FROM 1945 TO THE SECOND REPUBLIC (1961) A civilian government was established with the adoption of a democratic political system with sovereign power vested with the people. The first Korean Constitution provided that former American military laws and Japanese colonial rules were still valid. Korean administrative law failed to break down the authoritarian rules of Japanese colonialism. IV. THE THIRD REPUBLIC Syngman Rhee, the first President of Korea, was forced out of office in 1960. The Second Republic fell to a coup d’etat by General Park Chung Hee in 1961. A turning point for Korean administrative law President Park undertook to discontinue the effects of the old colonial rules by enacting a special set of rules and creating a committee for the abolishment of the old rules. V. FROM YUSIN CONSTITUTION TO THE FIFTH REPUBLIC President Park declared a stage of national emergency and suspended the Constitution in 1971. The new Yusin Constitution was marked by the enormous powers granted to the President. In 1979, Park was gunned down. After Park’s assassination, a coup d’etat led by Chun Doo Hwan established the Fifth Republic. Gwangju Massacre was the most tragic event caused by the violent suppression of a popular uprising. VI. FROM THE CREATION OF CONSTITUTIONAL COURT TO THE PRESENT The Sixth Republic Korea’s present-day government began with the transfer of power from the authoritarian governments which were in power for the previous 25 years. With increasing democratization after 1987, the power of the President has weakened. In 1992, Kim Young Sam was elected as the first civilian President in 30 years. In 1997, Kim Dae-jung was elected, and it was the first transfer of government between parties by peaceful means. VI-1. THE CREATION OF CONSTITUTIONAL COURT In response to public demand for democratization, the first President of the Sixth Republic, Roh Tae Woo launched a program that led to significant constitutional reforms, including direct presidential elections and the creation of a Constitutional Court. Constitutional Court has made great strides into promoting the fundamental rights of an individual by applying the Korean Constitution in real-life cases and thereby providing concrete interpretation of abstract principles of individual rights. VI-2. THE ADMINISTRATIVE PROCEDURE ACT (APA) The Korean Administrative Procedure Act The APA requires agencies to establish processing periods and publicly announced standards for issuing dispositions. It requires formal hearings, but only when required by statute or deemed necessary by the agencies involved. The administrative guidance section of the APA sets the principle that administrative guidance should be as minimal as is necessary to achieve its purpose and should not be exercised against the will of the affected party. The APA also requires administrative agencies to announce in advance proposed legislation that affects the rights and duties of citizens or affecting the daily lives of citizens, and to allow public comment. VI-2. THE ADMINISTRATIVE PROCEDURE ACT (APA) The Civil Petitions Treatment Act allows petitions to be brought by any individual who alleges that an administrative act infringes on his or her rights. It establishes a National Grievance Settlement Committee under the Prime Minister to receive, investigate and settle civil petitions. An Ombudsman’s office with the power to hear citizens’ complaint about administrative dispositions and to recommend corrective action was established. The Basic Law on Administrative Regulation establishes the general principle of cost-benefit analysis and accordance with statutory purposes for all regulations. VI-3. KOREAN ATTITUDES TOWARDS LAW The new Korean system provides for external control of bureaucrats for the first time, along with public participation in policymaking. So what explains these radical changes of administrative regulations in Korea? VI-3. KOREAN ATTITUDES TOWARDS LAW Changes of Korean Attitudes towards Law Confucian teachings emphasized a hierarchic order of control and obedience, centering on the patriarchal head, which discriminates between high and low, elder and younger, and male and female. During the Japanese colony from 1910 to 1945, in every practical sense, law was synonymous with colonial oppression and reinforced the age-old conviction that the legal system served those who had the power to make the law. Breaking the law was regarded as a means for the people to express their discontent with colonial rule VI-3. KOREAN ATTITUDES TOWARDS LAW There have been several byproducts of industrialization and economic development, which changed Korean attitudes towards law and eventually generated public demand for rule of law. Improvement of the public opinion collection process Rapid Economic Development in Korea Emergence of a Middle Class Increased Labor Union Activism Proliferation of Religious Groups Emergence of Non-Governmental Organizations Rapid Urbanization Changes in Family Structure New Roles of Women in Society VII. CONCLUSION Introduction of new actors and fundamental changes in social hierarchy, family structure and women’s roles brought more positive attitudes towards law. In response, Korea governments launched series of democratization programs including the creation of a Constitutional Court and the passage of the APA. Although much yet remains to be done, we may expect that the Korean administrative regime is more willing to comply with the public demand for the Rule of Law as the public awareness of the principle is increasing.