행정사에 행정심판대리권을 미부여한 현행 「행정사법」과 「행정심판법」의 위헌성 검토 - 「행정사법」제2조 제1항과 「행정심판법」제18조 제1항을 바탕으로 -

초록

Administrative adjudication is a legal remedy sought by citizens whose rights or interests have been infringed upon by an administrative attorney’s unlawful or unfair disposition or by the exercise or non-exercise of public power. Unlike administrative litigation, which challenges legality, administrative adjudication simultaneously examines both legality and appropriateness. The fact that administrative adjudication addresses not only the illegality of a disposition but also its appropriateness means that administrative adjudication and litigation are fundamentally different procedures. Therefore, administrative adjudication is a specialized process, reserved for those with the ability, experience, and expertise to address the appropriateness of administrative dispositions. However, administrative attorneys according to the Administrative Attorneys Act, who have taken and passed the examination subjects such as The Administrative Appeals Act, the Non-Civil Procedure Act, the Administrative Attorneys Act, and Administrative Studies and possess unique and specialized knowledge and skills regarding the appropriateness of administrative dispositions, are not granted the right to represent administrative appeals even though they professionally write administrative appeal requests and objection applications in practice. The fact that only administrative attorneys, who are professional licensed professionals with unparalleled and specialized knowledge regarding the purposefulness of administrative actions such as administrative adjudication, are granted the right to represent in administrative adjudication, while other licensed professionals with significantly lower levels of understanding of the purposefulness of administrative adjudication are granted both the right to represent in administrative adjudication and the right to act as an administrative adjudication attorney, undermines the legislative intent of the administrative attorneys system based on Article 1 of the Administrative Attorneys Act, which is to promote administrative convenience for the people and develop the administrative system, and has a negative impact on the promotion of public welfare. To this end, this paper will examine whether the current Article 2, Paragraph 1 of the Administrative Attorneys Act and Article 18, Paragraph 1 of the Administrative Appeals Act, which do not grant administrative attorneys the right to represent them in administrative appeals, infringe upon the freedom of occupational choice (II.) and right to equality (III.) of administrative attorneys, and draw a conclusion (IV.). Through this, the purpose of this paper is to re-establish the legal status of administrative attorneys according to the Administrative Attorney Act at the constitutional level.

키워드