행정처분기준 정비방안 연구(Ⅱ)
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(2) 행정처분기준 정비방안 연구(Ⅱ) The Study for Readjustment of the standards for administrative disposition(Ⅱ ). 연구책임자 : 김재광(연구위원, 교육․문화․경제행정 부문책임) Kim, Jae-Kwang 참여연구원 : 강문수(부연구위원, 환경행정 부문책임) Kang, Mun-Soo. 2007. 10. 31..
(3) 국문요약 이 보고서는 “2007년도 행정처분기준 정비지침”에 관한 부분과 각 “행정분야별 행정처분기준 정비”에 관한 부분의 2원적 구성을 감안하 여 제1편, 제2편 및 제3편으로 구성한다. 제1편은 “2007년도 행정처분 기준 정비지침”을, 제2편은 교육․문화․경제 및 환경 등 각 행정분야 별로 행정처분기준의 정비방안을 구체적으로 고찰한다. 제3편은 결론 을 담고 있다. 제1편에서는 행정처분 및 행정처분기준의 개요와 2006년 행정처분 기준 정비지침의 문제점과 개선방안, 그리고 2007년 정비지침의 설정 과 구체적 내용 등에 대해 살펴보았다. 2006년 행정처분기준 정비지 침의 문제점 분석결과, “행정처분기준 정비지침의 일반원칙”, 행정처 분기준 “일반기준” 및 “개별기준”의 정비지침의 문제점 분석결과, 일 부 지침이 수정․보완 및 신설할 필요성이 있는 것으로 나타났다. 2007년 정비지침은 객관성과 적정성 및 실무적응성을 한 차원 제고하 였다고 평가할 수 있을 것이다. 제2편에서는 개별행정분야 행정처분기준 정비방안에 대해 살펴보았 다. 제1부에서는 교육행정분야 행정처분기준 정비방안을, 제2부에서는 문화행정분야 행정처분기준 정비방안을, 제3부에서는 경제행정분야 행정처분기준 정비방안을, 제4부에서는 환경행정분야 행정처분기준 정비방안을 살펴보았다. 제1부 교육행정분야 행정처분기준 정비방안은 주요국가의 교육행정 법령상의 행정처분기준분석(Ⅰ)과 현행 교육행정법령상의 행정처분기 준의 분석(Ⅱ), 현행 교육행정법령상 행정처분기준 정비방안 요약(Ⅲ) 으로 구성되어 있다. 현행 교육행정법령에는 행정처분기준이 없고 훈 령에서 재제기준을 두고 있다. 교육행정 또한 법치행정의 원칙을 벗어 날 수는 없는 것이므로 행정처분기준의 법률유보를 통한 명확화는 교.
(4) 육행정분야의 현안과제라 하지 않을 수 없다. 제2부 문화행정분야 행정처분기준 정비방안은 주요국가의 문화행 정법령상의 행정처분기준분석(Ⅰ)과 현행 문화행정법령상의 행정처분 기준의 분석(Ⅱ), 현행 문화행정법령상 행정처분기준 정비방안 요약 (Ⅲ)으로 구성되어 있다. 최근에 입법이 매우 활발한 분야로서 많은 법령들이 제․개정되고 있으며 행정처분기준 또한 타 행정법령에 비 해 비교적 정비지침에 부합되게 설정되어 있다. 제3부 경제행정분야 행정처분기준 정비방안은 주요국가의 경제행 정법령상의 행정처분기준분석(Ⅰ)과 현행 경제행정법령상의 행정처분 기준의 분석(Ⅱ), 현행 경제행정법령상 행정처분기준 정비방안 요약 (Ⅲ)으로 구성되어 있다. 경제행정법령의 제재수단의 핵심은 과징금이 고 실무적으로도 주로 과징금이 문제되고 있어, 논의의 초점을 주로 과징금에 맞추었다. 과징금 부과기준은 행정의 상대방에게 미치는 영 향이 크기 때문에 비교적 잘 정비되어 있다. 제4부 환경행정분야 행정처분기준 정비방안은 주요국가의 환경행정 법령상의 행정처분기준분석(Ⅰ)과 현행 환경행정법령상의 행정처분기 준의 분석(Ⅱ), 현행 환경행정법령상 행정처분기준 정비방안 요약(Ⅲ) 으로 구성되어 있다. 환경행정분야에 있어서는 제재수단들이 다른 행 정분야와 비교해 볼 때 다양하다. 그래서 제재수단들을 전수조사하여 각각의 특징을 제시하였다. 서론에서 밝혔듯이 이 연구를 통하여 예상될 수 있는 기대효과로 네 가지를 제시하였다. 첫째는 현행 교육․문화․경제 및 환경 관련 법령의 행정처분기준을 정확히 파악․분석함으로써 행정처분기준의 실태를 정확하게 점검하겠다는 것, 둘째는 우리나라의 교육․문화․ 경제 및 환경 관련법령의 행정처분기준이 가지는 비교법적 위치를 분 석함으로써 국제수준과의 비교․평가가 가능하도록 한다는 것, 셋째 는 교육․문화․경제 및 환경 관련법령의 행정처분기준에 있어 즉각.
(5) 적이고 현실적인 개정이 필요한 부분을 찾아내어 실질적인 정비안을 마련․제시한다는 것, 네째는 교육․문화․경제 및 환경 관련법령의 행정처분기준의 정비방안을 제시함으로써 법제처의 법령심사와 재량 행위 투명화사업의 일환으로 관련 부처의 행정처분기준에 대한 전반 적인 정비가 가능하게 됨으로써 법치행정을 실현할 수 있을 것 등이 다. 생각건대, 이 연구보고서는 네 가지 기대효과를 원칙적으로 충족 하고 있다고 본다. 특히 재량행위 투명화사업에는 직접적인 적용될 수 있을 것이다. 다만, 아쉬운 것은 행정처분기준 관련 외국법제에 대 한 심층적인 분석과 우리 법제와의 비교분석을 입체적이고 유기적으 로 연계하여 연구한다는 당초의 구상이 달성되지 못한 점이다. 그렇 지만 국내에서 처음으로 교육행정, 문화행정, 경제행정 및 환경행정 분야의 행정처분기준 관련한 외국법제들을 일본, 미국, 독일 및 프랑 스 등의 법제들을 연구대상으로 비교분석한 것은 일정한 성과라 할 수 있을 것이다. 참고로 ｢행정처분기준 정비방안연구사업｣은 3차년도에 걸쳐 수행되 는 연구사업인데, 1차년도인 2006년에는 경찰행정․보건행정․건축행 정분야의 행정처분기준을 연구하였고, 2차년도인 2007년 올해에는 교 육행정․문화행정․경제행정 및 환경행정 분야의 행정처분기준을 연 구하고, 제3차년도인 2008년에는 노동행정․복지행정 분야의 행정처 분기준 및 그 정비방안과 아울러 총 3개년에 걸친 연구결과를 집대성 하게 될 것이다.. ※ 키워드 : 행정처분기준, 교육행정, 문화행정, 경제행정, 환경행정.
(6) Abstract Nowadays, the standards for administrative disposition serve as an important legal means of achieving the effectiveness of administration and the protection of citizens' rights and interests. Constantly changing and developing administration like a living organism requires the contents of laws and regulations governing such administration be changed accordingly. The standards for administrative disposition supplementing such laws and regulations must reflect the trends of such change thoroughly in such a manner that does not conflict with the upper laws and regulations and serves to promote citizens' rights and interests in harmony with the public purpose of administration by properly adjusting the degree of administrative measures. However, the standards for administrative disposition set pursuant to current laws and regulations have various problems, which lead to many difficulties in administrative practices and the protection of citizens' rights and interests. So, new standards for administrative disposition need to be established to solve such problems. In this context, this study examines in detail the contents of the existing standards for administrative disposition and presents the policy measures to establish new standards for administrative disposition with a view to serving the security of transparency in the exercise of discretionary powers and promoting citizens' rights and interests. To this end, this paper establishes a guideline for improving the standards for administrative disposition and sets forth new standards for administrative disposition according to such a guideline. Such new standards are based on the general principles for improving administrative.
(7) operations.. This. study. categorizes. the. standards. for. administrative. disposition into general standards and individual standards and then presents the policy measures to apply such standards to the detailed areas of administration such as education, culture, economic, environment, etc.. ※ key words : standards for administrative disposition, education. administration,. culture. administration,. administration, environment administration. economic.
(8) 목 차. 국 문 요 약 ······································································································ 3 Abstract ············································································································ 7. 제 1 편 행정처분기준 정비지침 검토 ······································ 21 제 1 장 서 론 ·························································································· 23 제 1 절 연구의 필요성 및 목적 ······················································ 23 제 2 절 연구내용과 연구방법 ·························································· 25. 제 2 장 행정처분과 행정처분기준의 개요 ······························· 29 제 1 절 행정처분의 개요 ··································································· 29 제 2 절 행정처분기준의 개요 ·························································· 30 제 3 절 행정처분기준에 대한 법원의 시각 ································ 31. 제 3 장 행정처분기준 정비지침 ····················································· 35 제 1 절 2006년 행정처분기준 정비지침 정립과 법적 함의 ·· 35 Ⅰ. 2006년 행정처분기준 정비지침의 정립 ·································· 35 Ⅱ. 2006년 행정처분기준 정비지침의 적용과 평가 ···················· 37.
(9) 제 2 절 2006년 행정처분기준 정비지침의 문제점과 개선방안 ·················································································· 43 제 3 절 2007년 행정처분기준 정비지침과 구체적 내용 ········ 49 Ⅰ. 2007년 행정처분기준 정비지침 ················································ 49 Ⅱ. 정비지침의 구체적 내용 ···························································· 51. 제 4 절 2006년 정비지침과 2007년 정비지침 대비표 ············· 72 Ⅰ. 행정처분기준 정비지침의 일반원칙 ········································ 72 Ⅱ. 행정처분기준의 일반기준의 정비지침 ···································· 73. 제 5 절 요약 및 결어 ·········································································· 75. 제 2 편 개별행정분야 행정처분기준 정비방안 ·················· 77. 제 1 부 교육행정분야 행정처분기준 정비방안 ························· 79. 제 1 장 서 론 ·························································································· 81 제 2 장 주요 국가의 교육행정법령상의 행정처분기준 분석 ····························································································· 83 제 1 절 일 본 ························································································· 83 Ⅰ. 교육행정법체계 ············································································ 83 Ⅱ. 학교교육과 설치관리에 관한 기준 ·········································· 91.
(10) Ⅲ. 교육행정법령상 행정처분기준 ················································ 100 Ⅳ. 시사점 ·························································································· 115. 제 2 절 독 일 ······················································································· 116 Ⅰ. 교육행정법체계 ·········································································· 116 Ⅱ. 교육행정법령상 행정처분기준 ················································ 117 Ⅲ. 시사점 ·························································································· 124. 제 3 절 미 국 ······················································································· 125 Ⅰ. 교육행정법체계 ·········································································· 125 Ⅱ. 교육행정법령상 행정처분기준 현황 ······································ 129 Ⅲ. 시사점 ·························································································· 135. 제 4 절 프랑스 ····················································································· 137 Ⅰ. 교육행정법체계 ·········································································· 137 Ⅱ. 시사점 ·························································································· 151. 제 5 절 소 결 ······················································································· 152. 제 3 장 현행 교육행정법령의 행정처분기준 분석 ············· 159 제 1 절 교육행정법의 특성 ····························································· 159 Ⅰ. 교육의 자주성․전문성․정치적 중립성 ······························ 159 Ⅱ. 교육의 공공성 ············································································ 163 Ⅲ. 교육의 평등성 ············································································ 164.
(11) 제 2 절 현행 교육행정법령 현황 ·················································· 165 제 3 절 교육행정법령상 행정처분 및 행정처분기준의 현황과 문제점 ······················································································ 177 Ⅰ. 교육행정법령상 행정처분 현황과 문제점 ···························· 177 Ⅱ. 교육행정법령상 행정처분기준 현황과 문제점 ···················· 190. 제 4 절 2005년도 행․재정 제재 확정 내역 ···························· 203 Ⅰ. 행정처분기준 적용관련 사례 ·················································· 209 Ⅱ. 교육공무원의 금품․향응 수수 관련 징계처분기준 ·········· 210. 제 5 절 소 결 ······················································································· 212. 제 4 장 현행 교육행정법령 행정처분기준의 정비방안 ··· 215 제 1 절 교육행정법령의 정비지침 ················································ 215 Ⅰ. 정비지침의 일반원칙 ································································ 215 Ⅱ. 행정처분기준의 일반기준의 정비지침 ·································· 215 Ⅲ. 행정처분기준의 개별기준의 정비지침 ·································· 216. 제 2 절 개별법 ····················································································· 217. 제 5 장 요약 및 결어 ········································································ 219 Ⅰ. 주요국가의 교육행정법령상의 행정처분기준 분석 요약 ··· 219 Ⅱ. 현행 교육행정법령상의 행정처분기준 분석 요약 ·············· 224 Ⅲ. 현행 교육행정법령 행정처분기준 정비방안 요약 ·············· 225.
(12) 제 2 부 문화행정분야 행정처분기준 정비방안 ······················· 227. 제 1 장 서 론 ························································································ 229 제 1 절 문화행정법의 대상 ····························································· 229 제 2 절 문화행정법의 특성 ····························································· 231 제 3 절 논의순서 ················································································ 232. 제 2 장 주요국가의 문화행정법령의 행정처분기준 분석 ··· 233 제 1 절 일 본 ······················································································· 233 Ⅰ. 문화행정법체계 ·········································································· 233 Ⅱ. 문화행정법령상 행정처분기준 ················································ 235 Ⅲ. 시사점 ·························································································· 246. 제 2 절 독 일 ······················································································· 248 Ⅰ. 문화행정법체계 ·········································································· 248 Ⅱ. 메클렌부르크-포폼머른주의 행정처분기준 현황 ················ 249 Ⅲ. 명령형식의 문화행정처분기준 ················································ 253 Ⅳ. 행정규칙형식의 문화행정처분기준 ········································ 256 Ⅴ. 시사점 ·························································································· 261. 제 3 절 요약 및 결어 ········································································ 263.
(13) 제 3 장 현행 문화행정관련법령의 행정처분기준의 분석 ··· 267 제 4 장 현행 문화행정관련법령의 행정처분기준의 정비방안 ················································································· 331 제 1 절 문화행정법령의 정비지침 ················································ 331 Ⅰ. 정비지침의 일반원칙 ································································ 331 Ⅱ. 행정처분기준의 일반기준의 정비지침 ·································· 331 Ⅲ. 행정처분기준의 개별기준의 정비지침 ·································· 332. 제 2 절 게임산업진흥에 관한 법룰 ············································· 333 Ⅰ. 정비지침의 일반원칙 ································································ 333 Ⅱ. 행정처분기준의 일반기준의 정비지침 ·································· 335 Ⅲ. 행정처분기준의 개별기준의 정비지침 ·································· 340. 제 3 절 문화재보호법 ········································································ 341 Ⅰ. 정비지침의 일반원칙 ································································ 341 Ⅱ. 행정처분기준의 일반기준의 정비지침 ·································· 343 Ⅲ. 행정처분기준의 개별기준의 정비지침 ·································· 347. 제 5 장 요약 및 결어 ········································································ 349 Ⅰ. 주요국가의 문화행정법령상의 행정처분기준 분석 요약 ···· 349 Ⅱ. 현행 문화행정법령상의 행정처분기준 분석 요약 ·············· 352 Ⅲ. 현행 문화행정법령상의 행정처분기준의 정비방안 ············ 354.
(14) 제 3 부 경제행정분야 행정처분기준 정비방안 ······················· 361 제 1 장 서 론 ························································································ 363 제 2 장 주요국가의 경제행정법령상 행정처분기준 분석 ··· 365 제 1 절 일 본 ······················································································· 365 Ⅰ. 독점금지법상 과징금제도 ························································ 365 Ⅱ. 일본의 과징금제도 개혁 ·························································· 366 Ⅲ. 시사점 ·························································································· 373. 제 2 절 독 일 ······················································································· 374 Ⅰ. 경제행정법체계 ·········································································· 374 Ⅱ. 독일 경제행정법령의 내용 및 처분기준의 유형 ················ 377 Ⅲ. 시사점 ·························································································· 381. 제 3 절 미 국 ······················································································· 382 Ⅰ. 미시간주 법률위반 행정처분 현황 ········································ 382 Ⅱ. 경제관련 행정처분 현황 ·························································· 383. 제 4 절 소 결 ······················································································· 394. 제 3 장 현행 경제행정관련법령의 행정처분기준의 분석 ··· 397 제 1 절 경제행정의 법적 행위형식과 내용 ······························ 397 Ⅰ. 경제행정의 의의 ········································································ 397.
(15) Ⅱ. 경제행정의 종류, 특수성 및 법적 한계 ······························· 398 Ⅲ. 경제행정분야 관련법령 현황 ·················································· 403 Ⅳ. 경제행정분야에서의 법적 행위형식 ······································ 409 Ⅴ. 경제행정의 내용 ········································································ 426. 제 2 절 경제행정법령상 과징금부과제도의 문제점과 개선방안 ················································································ 451 Ⅰ. 과징금제도의 의의 ···································································· 451 Ⅱ. 경제행정법령상 과징금제도의 유형 ······································ 455 Ⅲ. 행정처분기준으로서의 금액산정기준과 관련한 문제 ········ 470 Ⅳ. 소 결 ···························································································· 479. 제 4 장 현행 경제행정관련법령의 행정처분기준의 정비방안 ················································································· 483 제 1 절 경제행정법령의 정비지침 ················································ 483 Ⅰ. 정비지침의 일반원칙 ································································ 483 Ⅱ. 행정처분기준의 일반기준의 정비지침 ·································· 483 Ⅲ. 행정처분기준의 개별기준의 정비지침 ·································· 484. 제 2 절 독점규제 및 공정거래에 관한 법률 ···························· 485 Ⅰ. 정비지침의 일반원칙 ································································ 485 Ⅱ. 행정처분기준의 일반기준의 정비지침 ·································· 487 Ⅲ. 행정처분기준의 개별기준의 정비지침 ·································· 489. 제 3 절 방문판매 등에 관한 법률 ················································ 490 Ⅰ. 정비지침의 일반원칙 ································································ 490.
관련 문서
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