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A study on a set of administrative function steps

  • Public Land Law Review
  • Abbr : KPLLR
  • 2010, 51(), pp.251-278
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Jae-Ho Kim 1

1충남대학교

Accredited

ABSTRACT

Administrative functions have been required to respond the diversity and specialization of administrative relationships. The Administrative Law has recognized the need to establish the new system of administrative rules and functions which can be merged in the traditional system of a constitutional state. It will be realized by adopting administrative functions giving consideration in advance to guarantee the transparency of administrative decisions and the procedural rights of individuals, which will make the Administrative Law open, flexible and developed. This paper finds the limitation of the traditional administrative functions and examines the legal effects of government's commitment and interim administrative functions upon the premises that gradual and interim administrative functions are necessary. There are immanent differences on the definition, meanings, and requirements between the traditional administrative functions and the commitment or interim administrative functions, but as so do the traditional functions, the new administrative functions also seek for and contribute to fitting the purposes of administrative decisions and protecting individual rights. Government's commitment itself regulates administrative relationships and administrative bodies will be bound by the commitment, though it does not conclude administrative relationships when it was made. It is enough to meet the requirements of administrative functions and individuals whose legal rights are infringed by excluding the bounding power of the commitment should be protected by the procedure of loss compensation and administrative dispute. In 1995, the Supreme Court decided that determining priority prior to providing a fishery license is not an administrative decision, but a commitment. However, the determination of priority was considered an administrative decision in the administrative tribunal and was not dismissed. In result, the decisions from both the administrative tribunal and the court were inconsistent. The interim administrative function should be approved when the implementation is beneficial, even if related facts have not been determined and the administrative function is reserved. There are negative views to accept the new administrative functions because the dependence and expectation of administration are accomplished by the traditional functions. However, although the interim administrative function accompanies its principal administrative function and requires to complete imperfection, it should not be denied that certain administrative functions are implemented and beneficial effects are accomplished. Thus, the interim administrative function meets the requirements of a administrative function, and it is already carried out and able to be carried out.

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