행정입법제정절차 통제방안에 관한 미국 행정법학계의 논쟁과 시사점 ― 미국 행정절차법 제553조 공고 및 의견제출 절차 논의를 중심으로 ―

초록

The United States Administrative Conference, an independent committee under the US Administrative Procedure Act in 2019, proposed a recommendation that the procedures for enacting administrative legislation should be strengthened. The recommendation focuses on Article 553 of the Federal Administrative Procedure Act, which has been the subject of continuous debate since its enactment in 1946. Article 553 of the Federal Administrative Procedure Act stipulates that administrative legislation must go through a legislative notice and comment procedure for interested parties, while the procedure may be omitted if “an interpretation rule, policy explanation, or administrative agency deems it impossible, unnecessary, or contrary to the public interest.” However, it has been criticized that the public's procedural participation in the administrative legislation process under the Federal Administrative Procedure Act has not been practically achieved as each federal agencies prefers to omit the procedures rather than comply with the federal administrative law. After the economic depression in 1929, the expansion of administrative legislation by the federal government served as an opportunity for the enactment of the Federal Administrative Procedure Act. Initially, procedures equivalent to hearing procedures were stipulated, but they were not approved by the Congress, and in the case of summary procedures as a result of compromise, they were stipulated to go through public notice and opinion procedures. However, the notice and comment procedures, which were more unstringent than the hearing procedures under the Administrative Procedure Act, raised skepticism about the effectiveness of procedural control, and legislation was submitted to strengthen procedures in the 1960s. Since then, health, safety, and environmental regulations have increased rapidly, and procedural control over the administration's disposition has been emphasized through the Information Disclosure Act in 1966 and the Goldberg case in 1976. However, regulations on new areas strengthened the court's administrative delegation through the Chevron case and since the 1980s, administrative legislation has emerged as a regulatory area that affects basic rights of the people, such as property rights. As a result, discussions on re-evaluation of administrative legislation procedures emerged in the 1990s, mainly through relaxed administrative legislation procedures, and discussions calling for effective control of administrative legislation procedures have been held since the 2000s. In particular, since 2010, it has been argued that at least the procedure should be more clearly defined, and discussions are being held at the 2015 United States Administrative Conference. The recent discussion has emerged as a way to supplement the current administrative legislation enactment procedure. It is argued that the necessity of public notice and opinion submission procedures should be recognized, but the public notice and opinion submission procedures that are operated or exceptionally omitted should be operated in a more effective direction. For example, a minimum disclosure deadline of 60 days, a plan to reach stakeholders more actively, a plan to submit opinions online, and a plan to write down the administration's response to the submission of opinions. However, this measure can still be criticized in that it complicates the administrative legislation process of the administration and limits its practical content control. The administrative legislative procedure under the Administrative Procedure Act of Korea is quite similar to the United States administrative legislative procedure in that it is difficult to strictly interpret the administrative legislative procedure due to unclear exceptions and relatively wide regulations. However, as the U.S. administrative law is still a subject of controversy, more discussions will be held in Korea on how to evaluate the normative strictness of the administrative legislation procedure, especially whether it can be evaluated generally, and whether it should be evaluated differently depending on the type and nature of individual administrative legislation. As Justice Scalia states, “the simplest way to change the essence is to change the procedure?” so what value does the procedure most effectively contribute to (administrative) legislation? The discussion process in the United States itself cannot be a criterion for determining the specific scope of procedural legitimacy, but it is believed that it can be the starting point for considering the method and scope of legitimate procedures in our Administrative Procedure Act.

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