이은상, The Enactment of the General Act on Public Administration in South Korea and Its Impact on Administrative Practice

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The Enactment of the General Act on Public Administration in South Korea and Its Impact on Administrative Practice*

Eun-sang Rhee**

Abstract

This article is mainly about the significance and limitations of the General Act on Public Administration (GAPA) in Korea and its impact on administrative practice. Whereas the Administrative Procedures Act is enacted and enforced as a general law governing administrative procedures in Korea, administrative substantive law has long been based primarily on uncodified sources, such as the general principles of administrative law that are formed from academic theories and precedents and exist in a scattered system of various individual statutes. In July 2019, the Ministry of Government Legislation took the initiative to enact the GAPA, which would codify the general principles of substantive law across the administrative sphere. An advisory committee was established to prepare the legislation, and in July 2020, the draft of the GAPA was submitted to the National Assembly; on March 23, 2021, the GAPA was enacted and promulgated. The enactment of the GAPA was the result of the combined efforts and experience of academia, the legal profession, and the executive branch over a period of about two years. The main contents of the GAPA are divided into the following categories according to the legislative purpose of each provision: provisions to improve the predictability of law enforcement, provisions to expand remedies for people’s rights, provisions to promote proactive administration and regulatory innovation, and provisions to improve the efficiency and uniformity of administration.

The enactment of the GAPA is significant in the following respects. First, it realized the codification of administrative substantive law corresponding to the general principles of administrative law. Next, it was a starting point for the future enactment of a comprehensive general administrative code. Lastly, the enactment of the GAPA laid the foundation for the reform and development of administrative law in Korea.

However, the GAPA is still incomplete as a general law on public administration, as many provisions were deleted during the legislative review process, and it needs to be amended to include additional provisions that are related to the matters that have been discussed during the

This article is based on the manuscript presented at the International Conference on the 20th Anniversary of the Administrative Court of Mongolia on June 4, 2024. This article was funded by 2024 Research Fund of the Seoul National University Asia-Pacific Law Institute, donated by the Seoul National University Foundation.

** Assistant Professor, Seoul National University School of Law, Ph.D. (Administrative Law)

Journal of Korean Law | Vol. 23, 287-320, August 2024

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draft deliberation stage and the matters to better protect the rights and interests of the public. In addition, although the procedural content of the GAPA does not directly overlap or conflict with the Administrative Procedures Act, when it comes to matters that are regulated by two separate laws, there is a problem of decentralization of regulations.

There have been changes and impacts on administrative practice since the enactment and enforcement of the GAPA. First, in the legislative area, the GAPA provided the legal basis for the establishment of the National Public Administrative Legislation Committee and its continued existence, enabling it to regularly discuss the development of administrative statutes and regulations and improvements to the legal system. Next, in terms of changes in the administrative area, a behavioral norm of administrative action was established through the GAPA. Finally, in the judicial and trial areas, the Regulations on Administrative Litigation, as a Supreme Court regulation, were promulgated and enforced. The GAPA played the role of an adjudicatory norm in cases that have been filed to argue for the illegality of an administrative action, citing the relevant provisions of the GAPA as grounds for it.

It will be necessary to continuously review the existing provisions of the GAPA that have been pointed out for improvement, to supplement and re-legislate those that have been eliminated during the draft deliberation stage of the GAPA, and to make additional amendments to protect the rights and interests of the public and improve the appropriateness of administration. Promoting the integrated codification of administrative law after the enactment and implementation of the GAPA is also a major challenge.

Keywords: General Act on Public Administration, Administrative Procedures Act, Regulations on Administrative Litigation, codification, administrative law

Manuscript received: July 13, 2024; review completed: August 8, 2024; accepted: August 8, 2024.

I. Introduction

It has been more than three years since the General Act on Public Administration (GAPA)1) was enacted on March 23, 2021, and has been in full force in South Korea (hereinafter Korea). At this point, it is meaningful to recall the purpose and meaning of the original enactment of the GAPA, review the changes in public administrative practice that have occurred

1) In Korean research papers or articles, as seen in the references, the English notation of “행정기본법” is variously used as “General Act on Public Administration” , “Administrative Basic Law”. “Basic Public Administration Act”, and so on. But in this article, it is written as “General Act on Public Administration” according to the Korea Legislation Research Institute’s English notation of Korean laws and regulations.

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since the enactment of the GAPA, and explore the future development of administrative law in Korea. This article first examines the process of enactment, significance, limitations, and main contents of the GAPA (Chapter II). Next, it analyzes the changes and impacts on public administrative practice since the enactment of the GAPA, focusing on the executive branch and briefly including the legislative and judicial (court) branches (Chapter III). Finally, it briefly discusses the future challenges of the GAPA (Chapter IV).

II. ‌The Enactment Process, Significance, Limitations, and

Main Contents of the GAPA

A. How the GAPA Was Enacted

‌Lack of Unified Substantive Law Governing Public Administration And

Attempts to Codify It

Whereas general laws governing administrative procedures and litigation have been enacted and enforced in Korea, substantive law governing public administration has long been based primarily on uncodified sources, such as general principles of administrative law, which are formed from academic theories and precedents and exist in a scattered system of various individual statutes. Unlike other areas of law, such as civil law and criminal law, which have a unified substantive law and general rules, the lack of unified and codified substantive law governing public administration has made it difficult to unify regulations and improve the system for various similar administrative systems stipulated in individual statutes. In particular, even for systems with similar names and contents, there has been much confusion in practical interpretation and application due to slightly different provisions in individual statutes. As a result, it has been pointed out that the lack of a codified general substantive law in public administrative law areas not only causes difficulties in understanding and redressing rights and interests for the public who encounter administrative law but also hinders the realization of the rule of law due to the instability of the legal basis2) for public officials who enforce

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the law in 2)practice.3) As a result, discussions and calls for the codification of unified substantive law that can specify general principles of administrative law and systematize common administrative systems scattered in individual statutes continued.

In July 1987, the bill for the Administrative Procedures Act was first prepared as a general law on administrative matters by containing substantive law provisions, such as restrictions on the revocation or withdrawal of dispositions, and delegated legislation on administrative compulsion, administrative investigations, information disclosure, and personal information protection, as well as administrative procedures. However, it was abandoned without being submitted to the National Assembly.4) The Administrative Procedures Act, which was enacted on December 31, 1996, and enforced on January 1, 1998, was organized around the “procedure” of administrative dispositions to exclude substantive content due to differences of opinion between academics and administrative ministries and the lack of accumulated precedents. In the subsequent amendment process, there were discussions to add substantive elements, but in the end, the amendments were limited to strengthening administrative procedures.5) In addition to the Administrative Procedures Act, the codification of administrative law has progressed through the enactment of laws that are equivalent to general laws, such as the Framework Act on Administrative Investigations, the Framework Act on Administrative Regulation, the Administrative Litigation Act, the

2) For a view pointing out the problem that public officials tend not to accept academic theories and case law as binding interpretations or guidelines in their practice, which leads to uncertainty about the consistency of administration by applying academic theories and case law, see Hyang-Seok Chae & Myeong Ho Ha, Haengjeonggibonbeobui jejeonggwajeonggwa juyonaeyong [The Legislative Process and Main Contents of 「General Act on Administration」], 60 J. Legis. Rsch. 1, 3 (2021) (In Korean).

3) See, e.g., Ha-Joong Chung, Haengjeonggibonbeob jejeongane daehan sogo [A Study on the Draft of the Basic Administrative Law], 689 Legis. 7, 7 (2020) (In Korean); Youn Boo Joung, Haengjeongbeobui seongmunhwa gwajeongsang suguiui jeogjeongseong geomto – haengjeonggibonbeob jejeong gwajeongeul jungsimeulo [A Study on the Appropriateness of Deliberation in the Codification of Administrative Law – Focusing on the Process of Enacting General Act on Public Administration], 24(1) Hongik L. Rev. 635, 637 (2023) (In Korean).

4) See, e.g., Chae & Ha, supra note 2, at 4.

5) Id.

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Administrative Appeals Act, and the Civil Petitions Treatment Act, but there are still no unified statutes that encompass the general rules of administrative law in terms of substantive law.

Enactment of the GAPA

The enactment of the GAPA, which codifies the general rules of substantive law across the administrative sphere, was promoted at the initiative of the Ministry of Government Legislation. The initiative was the president’s directive6) at the cabinet meeting on February 12, 2019. In response, on July 2, 2019, the Minister of Government Legislation reported the “GAPA Enactment Plan” to the cabinet, and a task force was established within the Ministry of Government Legislation to prepare basic materials by preparing subject-specific reference materials and practical draft articles.7) On September 5, 2019, the Advisory Committee on Administrative Legal System Innovation was formed and launched by appointing 50 experts representing each field, including academia (constitutional law and administrative law), the legal profession (judges, lawyers, and researchers at the Constitutional Court of Korea), and the executive branch (Office of the Chief Cabinet Secretary, Ministry of the Interior and Safety, Ministry of Justice, and Ministry of Government Legislation), distributed by region, gender, and age. From September 2019 to February 2020, the Advisory Committee on Administrative Legal System Innovation discussed the draft of the GAPA in three subcommittees,8) and

6) The gist of the directive was that “it is necessary to fundamentally think about how to solve problems collectively through general and principled regulations, rather than by developing hundreds of individual statutes for each issue that improves public inconvenience.” See, e.g., Nam-cheol Chung, Haengjeonggibonbeobui jejeong uimiwa juyo naeyong [Main Contents and Meaning of Enactment of the Framework Act on Administration in Korea], 693 Legis. 45, 46-47 (2021) (In Korean).

7) Chae & Ha, supra note 2, at 5 n.3.

8) The first subcommittee was in charge of general rules, general principles of administrative law, and legislative activities of government. The second subcommittee was in charge of disposition, and the third subcommittee was in charge of administrative actions other than disposition. A steering committee (consisting of the chairperson of the committee, the chairpersons of each subcommittee, and the chairpersons of major academic organizations) was established to review and coordinate the discussions of the subcommittees, and senior professors of administrative law were invited to meet as advisors to report on the discussions of the subcommittees and to receive comprehensive advice. For a

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from March 2020 to June 2020, the bill for the GAPA was proposed for legislation, and public hearings, briefings, and consultations with related organizations were conducted in earnest. On July 8, 2020, the bill was submitted to the National Assembly, and from November 2020 to February 2021, a drafting review of the bill and the resolution of the Judicial Affairs Committee were held. On February 26, 2021, the plenary session of the National Assembly voted on the bill, and it was sent to the government. On March 23, 2021, the “GAPA” was promulgated as Act No. 17979. Over a period of about two years, academia, the legal profession, and the executive branch worked together to enact the GAPA, which contains general provisions of administrative law in terms of substantive law.

B. Significance of the Enactment of the GAPA

First, the significance of the enactment of the GAPA is that the rules of substantive law covering the entire administrative field have been codified. Through this, the GAPA is expected to serve as a “general law” on public administration. Previously, there was no codified general substantive law in the field of administrative law to serve as a guiding principle and standard, which made it difficult for frontline officials and the public to understand the complex administrative law system. In addition, individual statutes often stipulated similar systems differently, resulting in the need to amend hundreds of statutes to improve a single system. By specifying the general principles of administrative substantive law established by academic theories and precedents, the GAPA codifies administrative substantive law9) and is expected to contribute to building a unified administrative law system. In addition, by systematizing and regulating the common matters of similar administrative systems, it is expected to enable the efficient promotion of regulatory innovation.10)

detailed account of the discussions of each subcommittee and the changes in topics at each stage, see, e.g., Chae & Ha, supra note 2, at 5-6.

9) For example, the Principle of Rule of Law in Administration (art. 8), Principle of Equality (art. 9), Principle of Proportionality (art. 10), Duty of Good Faith and Principles of Prohibition of Abuse of Authority (art. 11), Principle of Protection of Trust (art. 12), and Principle of Substantial Relations Between the Ends and the Means (art. 13).

10) For example, it outlines the calculation of time periods (art. 6-7), standards for

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The enactment of the GAPA can also be viewed as laying the foundation for the reform and development of administrative law in Korea.11) The general principles of administrative substantive law and the standards of application and interpretation common to administration in general, which are the main regulatory contents of the GAPA, are not the contents of theories and precedents per se but “administrative law dogmatics”12) as systematized jurisprudence on administrative substantive law. Administrative law dogmatics is not fixed or immutable but can be viewed as the product of a continuous process of legal interpretation that is subject to change as statutes, theories, and precedents change.13) While the administrative law dogmatics is primarily based on the GAPA, it also contributes to the amendment of the GAPA by supplementing its regulatory content after it is enacted or by examining new matters that need to be amended.14) In addition, administrative law dogmatics presents more detailed and systematic legal theories than the existing legal theories for each type and area of administrative action, thereby easing the burden of interpretation of individual administrative statutes and regulations in practice and influencing the legislation and interpretation of individual administrative statutes and regulations. Through this, administrative law dogmatics plays a driving role in administrative law reform for the

application of law (art. 14), revocation of dispositions (art. 18), withdrawal of legitimate dispositions (art. 19), sanctions (art. 22-23), deemed authorization and permission (art. 24-26), penalty surcharges (art. 28-29), and administrative compulsion (art. 30-33).

11) See, e.g., Chung, supra note 6, at 63.

12) “Administrative law dogmatics” can be defined as “a set of legal doctrines or legal propositions composed through the systematic organization of administrative laws, administrative precedents, and theories for the interpretation and application of administrative statutes and regulations”. See Jeong-Won Sun, Haengjeongbeopsang dogeumatigui tansaenggwa baljeon [The Birth and Development of Legal Dogmatics(“Rechtsdogmatik”) in Administrative Law], 72 Admin. L.J. 1, 8 (2023) (In Korean). Administrative law dogmatics consist of concepts and logical systems to reduce the burden of practice and contain value judgments and benefit quantification for various issues, and establishing such legal dogmatics is not only the task of the academic discipline in charge of theory, but also the task of practitioners. See Jeong-Hoon Park, Haengjeongbeobui chegyewa bangbeomnon [System and Methods of Administrative Law] 5-6 (2005).

13) See, e.g., Sun, supra note 12, at 8, 16.

14) Id. at 14.

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realization of the rule of law.15) It forms the court rules, procedures, and disciplines that should be respected in general, leading to the enactment and codification of the GAPA. It also systematizes the content of the regulations for the interpretation and application of the GAPA. Each administrative department and local government applies and enforces individual administrative statutes and regulations, respecting the provisions of the GAPA and administrative law dogmatics, thereby leading to the reform and development of administrative law. In other words, it is expected that the development of administrative law dogmatics, which became the basis for the enactment of the GAPA, will influence the amendment of the GAPA and the legislation, interpretation, and application of individual administrative statutes and regulations, and vice versa. The enactment and amendment of the GAPA and the legislation, interpretation, and application of individual administrative statutes and regulations will further promote the development of administrative law dogmatics, creating a “virtuous cycle” of administrative law reform and development.16)

Furthermore, the significance of the enactment of the GAPA is often viewed as the “beginning of the enactment of a (unified) general administrative substantive law code” that consolidates the major individual statutes on administration into a single code.17) The enactment of the GAPA is both a process and a result of the consolidation of administrative law theories developed in Korean administrative law academia and precedents,

15) Id. at 14, 16.

16) For a similar view that the enactment of the General Act on Public Administration (hereinafter “GAPA”) will contribute significantly to the development of administrative general law and administrative law dogmatics in the future, see for example id. at 23-24. For a view that emphasizes that administrative law reform can be realized through the formation and development of administrative law dogmatics, and that administrative law dogmatics are the driving force for the development of the basic principles of administrative law and the jurisprudence of administrative action, see Chung, supra note 6, at 63.

17) See, e.g., Jeong Hoon Park, Keynote Address at the 260th Annual Conference of the Korea Administrative Law and Practice Association: The General Act on Public Administration and the Tasks of Administrative Law: Recognition, Operation, and Innovation (Apr. 10, 2021); Jeong-sun Hong, Keynote Lecture at the 2020 Administrative Law Forum: Main Contents and Implications of the Submission of the Administrative Basic Law to the National Assembly (Oct. 30, 2020).

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and the success of this codification of administrative substantive law and the goal of enacting a unified code of general administrative law is expected to open up new discussion horizons in administrative law.18)

C. Limitations of the GAPA

However, the GAPA cannot be considered a complete set of administrative substantive law rules covering all areas of public administration. This is because the GAPA still needs to be improved to be able to recognize the status of a comprehensive general administrative law code that encompasses the Administrative Procedures Act, the Framework Act on Administrative Investigations, the Framework Act on Administrative Regulation, the Administrative Litigation Act, the Administrative Appeals Act, and the Civil Petitions Treatment Act, which are statutes that are equivalent to general laws.19) Since the GAPA was limited in time and effort to be enacted as a complete law from the beginning, it was first drafted based on the content established through academic theories and precedents and the common matters and systems established in individual statutes. In order to minimize conflicts with existing laws, such as the Administrative Procedures Act, the regulatory contents were focused on matters with legal gaps and systems that can be generalized.20) In the end, it was inevitable that the GAPA was enacted by separating the substantive and procedural parts of the general principles of Administrative Law, leaving the latter to be governed by the Administrative Procedures Act and focusing mainly on the former, but even if it was an inevitable measure in reality,21) it is not a desirable

18) See, e.g., Chung, supra note 6, at 46.

19) See, e.g., Eun-sang Rhee, Tonghabjeog ilbanhaengjeongbeobjeonui silhyeoneul wihan beobje jeongbi banghyang [Direction of Legislative Improvement for the Codification of an Integrated General Administrative Law], 67 Admin. L. J. 1, 4 (2022) (In Korean).

20) See, e.g., Chae & Ha, supra note 2, at 4.

21) The division between the GAPA (enacted, led by the Ministry of Government Legislation) and the Administrative Procedures Act (enacted, led by the Ministry of the Interior and Safety) is likely due to the fact that the two statutes are enacted, led by different administrative ministries.

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legislative situation and needs to be improved in the future.22) Therefore, it is expected that the discussion on the integration of the GAPA and the Administrative Procedures Act will continue to be discussed as a future issue.23)

D. Main Contents of the GAPA

The main contents of the GAPA are divided into the following categories according to the legislative purpose of each provision: (1) provisions to improve the predictability of law enforcement, (2) provisions to expand remedies for people’s rights, (3) provisions to promote proactive administration and regulatory innovation, and (4) provisions to improve the efficiency and uniformity of administration.24)

22) See, e.g., Chae & Ha, supra note 2, at 55.

23) For articles that consider the need to integrate the GAPA and the Administrative Procedures Act in the future and further expand their contents, see for example Dae-in Kim, Haengjeonggibonbeobgwa haengjeongjeolchabeobui gwangye-e daehan gochal [A Study on the Relationship between 「Framework Act on Public Administration」 and 「Administrative Procedure Act」], 59 J. Legis. Rsch. 27, 59-60 (2020) (In Korean); Rhee, supra note 19, at 7-15.

24) These classifications are in accordance with the typology and classification criteria set forth by the Ministry of Government Legislation (see M i n i s t r y G o v’ t L e g i s., Haengjeonggibonbeob Jomunbyeol Haeseol [Commentary to the General Act on Public Administration], 28-32 (2021)). In addition, the categorization of each provision of the GAPA is based on the following three views: (1) general provisions of administrative law, (2) provisions for expanding the remedy of people’s rights, and (3) provisions for the legislative function of the administration (see Jean Soo Rhee, Haengjeonggibonbeob jejeong-ui uimiwa pyeongga [Significance and Evaluation of Enactment of “General Act on Administrative Law], 59 J. Legis. Rsch. 1, 5-11 (2020) (In Korean).). Also, the GAPA can be divided into the following, according to the meaning or function of its provisions: (1) provisions that are the basis for the interpretation of the law, (2) provisions that are prescribed to establish the legal basis for subordinate laws or systems such as orders and rules, (3) provisions that are guidelines for individual legislation related to administration, (4) provisions that are general grounds and standards for the system stipulated in many individual laws, (5) provisions that specify existing theories, precedents, and practical practices, and (6) provisions that introduce new systems to expand opportunities for people to seek redress for their rights (see Chan-hee Kim, Haengjeonggibonbeobe gwanhan heonbeobjeog gochal [Constitutional Considerations on the General Act on Public Administration], Const. Rsch. Inst., 8-9 (2024) (In Korean)).

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Improving Law Enforcement Predictability for the Public

a. Codification of Legal Principles of Administration

In Chapter 2, the GAPA stipulates the general principles of administrative substantive law that have been recognized in precedent of court decisions, including the principle of the rule of law (Article 8), the

Article 8 (Principle of Rule of Law in Administration) Any administrative action shall not contravene a statute, and if it restricts the rights of citizens, imposes obligations on citizens, or has material impacts on the lives of citizens, it shall have a statutory basis. Article 9 (Principle of Equality) Administrative authorities shall not discriminate against citizens without reasonable grounds. Article 10 (Principle of Proportionality) Any administrative action shall comply with the following principles: 1. It shall be effective and appropriate to achieve administrative purposes; 2. It shall be taken to the minimum extent necessary to achieve administrative purposes; 3. The infringement of citizens’ interest due to an administrative action shall not be greater than the public interest it intends to uphold. Article 11 (Duty of Good Faith and Principles of Prohibition of Abuse of Authority) (1) Each administrative authority shall perform its duties in good faith under statutes or regulations, etc. (2) No administrative authority shall abuse its administrative authority or exceed the scope of its authority. Article 12 (Principle of Protection of Trust) (1) An administrative agency shall protect a citizen’s legitimate and reasonable trust in administration, except where the public interest or a third party’s interest is likely to be significantly undermined. (2) An administrative authority shall not exercise an authority if citizens have good cause to believe that the authority would not be exercised since the administrative agency has not exercised the authority for a long time despite the opportunity to do so, provided that the same shall not apply where public interest or a third party’s interest is likely to be significantly undermined. Article 13 (Principle of Substantial Relations Between the Ends and the Means) In taking an administrative action, an administrative authority shall not impose on a party obligations unrelated in effect to the administrative action.

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principle of equality (Article 9), the principle of proportionality (Article 10), the duty of good faith and the principles of prohibition of abuse of authority (Article 11), and the principle of protection of trust (Article 12). As the general principles of administrative substantive law can serve as a measure for judging the illegality of administrative action, it is expected to provide clarity of the underlying law not only as a rule of law but also for public officials who enforce and apply the law in practice, and contribute to increasing predictability for the public.25) Since court decisions are essentially focused on resolving individual cases, in Korea, which is not a case law country, when the general principles of administrative substantive law remained at the level of precedent, it was difficult to predict whether a violation of the general principles of administrative substantive law could be applied in a case until the court’s final judgment. This limitation of predictability was improved through the provisions of the GAPA to clarify the norms.

b. Clarification of Grounds for Revocation or Withdrawal of Dispositions

25) See, e.g., Ministry of Gov’t Legis., supra note 24, at 28.

Article 18 (Revocation of Illegal or Unjust Dispositions) (1) An administrative authority may retroactively revoke all or part of an illegal or unjust disposition, provided that it may prospectively revoke such disposition if there is good cause, such as that a party’s trust has a value that deserves protection. (2) Where an administrative authority intends to revoke a disposition that grants rights or benefits to a party under paragraph (1), it shall compare the disadvantages to the party resulting from the revocation and the public interest attained by the revocation, taking into account the balance of hardships between them, provided that the same shall not apply in any of the following cases: 1. Where the disposition has been obtained by fraud or other improper means; 2. The party was aware of the illegality or, due to gross negligence, was unaware of it. Article 19 (Withdrawal of Legitimate Dispositions) (1) Where a legitimate disposition falls under any of the following, an administrative authority may withdraw all or part of the disposition prospectively:

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In the case of administrative dispositions that impose duties on parties to the dispositions or restrict their rights or interests, there have been many cases where the public has been disadvantaged by the passive attitude of the administrative authorities in not revoking or withdrawing the dispositions themselves, even though the dispositions were originally defected or no longer necessary due to changes in circumstances. The lack of legal grounds for ex-officio revocation or withdrawal may have played a part in this passive and rigid attitude of public officials, but the GAPA stipulates the requirements and effects of revocation of illegal or unjust administrative dispositions and withdrawal of legitimate dispositions. In addition, by specifying the legal doctrine that has been established through academic theories and precedents on the issue of protecting the public’s trust due to the revocation or withdrawal of beneficial administrative dispositions, the GAPA has contributed to the protection of the public’s interests and legal stability by providing a behavioral norm for the public administration’s interest and prudent revocation or withdrawal of administrative dispositions.

Expanding People’s Rights Remedies

a. Introducing a Limitation Period for Sanctions

Where it is subject to any of the grounds for withdrawal set forth in statutes;
Where it is no longer necessary to uphold a disposition due to an amendment to a statute or regulation, etc., or changes in circumstances;
Where revocation is necessary for the material public interest. (2) Where an administrative authority intends to withdraw a disposition under paragraph (1), it shall compare the disadvantages to the party resulting from the withdrawal and the public interest attained by the withdrawal, taking into account the balance of hardships between them.

Article 23 (Limitation Period for Sanctions) (1) An administrative authority may not impose a sanction (referring to suspension, revocation, or withdrawal of authorization or permission; cancelation of registration; or imposition of penalty surcharges in lieu of closure of a business office or suspension of business; hereafter in this article, the same shall apply) for a violation after five years from when the violation of

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If an administrative agency fails to impose sanctions for a long period of time even though there is a violation or default of an obligation under a law, the violator is in a state of legal instability. This situation was previously resolved through the “doctrine of forfeiture of rights” recognized through academic theories and case law, but there were not many cases recognized in case law, so the effectiveness of the remedy was questionable. The GAPA is expected to contribute to the protection of public trust and legal stability by establishing a provision for a limitation period for sanctions. It is also expected to have the effect of urging public officials to dispose of sanctions within a reasonable period of time.

b. Expanded Opportunities for Raising Objections to Disposition

a statute or regulation, etc., ceases to occur. (2) Paragraph (1) shall not apply to any of the following circumstances: 1. Where the party has obtained authorization or permission or filed a report by fraud or other improper means; 2. Where the party was aware of the illegality in obtaining authorization or permission or filing a report or, due to gross negligence, was not aware of it; 3. Where the limitation period expires due to evasion, obstruction, or refusal of an administrative authority’s investigation, entry, or inspection without good cause; 4. Where a failure to impose a sanction causes or is likely to cause serious harm to the safety or life of citizens or to the environment. (3) Notwithstanding paragraph (1), where a sanction is revoked or withdrawn on the grounds of a ruling on administrative appeal or a court ruling, an administrative authority may impose a new sanction in line with the purport of such ruling until one year (in the case of a collegiate administrative agency, two years) elapses from the date the ruling becomes final and conclusive. (4) Where other statutes provide for any shorter or longer period than those referred to in paragraphs (1) and (3), such statutes shall apply.

Article 36 (Raising Objections to Disposition) (1) Any party who has an objection to a disposition imposed by an administrative authority (referring to a disposition subject to administrative appeal under the Administrative Appeals Act pursuant to Article 3 of the same act; hereafter, in this article, the same shall apply) may raise an objection with the relevant administrative agency within 30 days from the date he or she receives such disposition. (2) Where an administrative authority receives an objection under paragraph

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The objection system, which was introduced in various individual statutes to provide people with the opportunity to easily raise objections to the disposing administrative agency at the preliminary stage of administrative appeals or administrative litigations, varied in name, such as “objection,” “appeal,” and “review,” and had different rules. Above all,

(1), it shall notify the person who has raised the objection of the results thereof within 14 days from the date it receives the objection, provided that if it is impossible to give notice within 14 days due to any unavoidable cause, the period may be extended once by up to 10 days, being counted from the day following the expiration date, and the objector shall be provided notice on the ground for such extension. (3) Even after raising an objection under paragraph (1), a person may file an administrative appeal under the Administrative Appeals Act or administrative litigation under the Administrative Litigation Act, regardless of raising the objection. (4) A person who intends to file an administrative appeal or administrative litigation after receiving the results of an objection may do so within 90 days from the date of receiving the notice of the results (referring to the date following the expiration of the notification period under paragraph (2), if there is no notice of the results within the notification period under the same paragraph). (5) Even where other statutes set forth procedures for raising objections and other procedures equivalent thereto, matters that are not set forth in those statutes shall be governed by this article. (6) Except as provided in paragraphs (1) through (5), matters necessary for the methods and procedures for raising objections and the like shall be prescribed by Presidential Decree. (7) This article shall not apply to any of the following cases: 1. Matters regarding dispositions such as disciplinary action under statutes or regulations on the personnel management of public officials; 2. Decisions of the National Human Rights Commission of Korea on petitions under Article 30 of the National Human Rights Commission of Korea Act; 3. Matters implemented subject to resolution by the Labor Relations Commission under Article 2-2 of the Labor Relations Commission Act; 4. Matters implemented in accordance with statutes and regulations on criminal affairs, criminal administration, or preventive orders; 5. Matters regarding entry into and departure from the country, refugee recognition, naturalization, and reinstatement of the nationality of aliens; 6. Matters regarding the imposition and collection of administrative fines.

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there was a lot of confusion regarding the objection system, with supreme court decisions differing in each case as to whether the period for filing an administrative appeal or an administrative litigation is suspended during the objection period. The GAPA clarified the objection system as a general remedy and set the starting point of the filing period for administrative appeals and administrative litigations as the date of notification of the result of the objection, thereby eliminating legal confusion and expanding remedies for people’s rights and interests.

c. Introducing a Re-examination of Disposition

Article 37 (Re-Examination of Dispositions) (1) Even where a disposition (excluding sanctions and administrative compulsion; hereafter in this article, the same shall apply) has become uncontestable through administrative appeal, administrative litigation, or any other litigation (excluding cases where a court rendered a final decision), a party may file an application with the administrative authority that has imposed the disposition to revoke, withdraw, or amend the disposition in any of the following cases: 1. Where the facts or legal relations that form the basis of the disposition change to the advantage of the party; 2. Where there is new evidence that would have brought a decision more favorable to the party; 3. Where there arise reasons equivalent to grounds for retrial referred to in Article 451 of the Civil Procedure Act, and other cases prescribed by Presidential Decree. (2) An application under paragraph (1) may be filed only when the party has failed to argue the grounds referred to in the subparagraphs of paragraph (1) in the proceedings of disposition, administrative appeal, administrative litigation, or any other litigation without gross negligence on his or her part. (3) An application under paragraph (1) shall be filed within 60 days from the date the party has become aware of the grounds referred to in the subparagraphs of paragraph (1), provided that no application may be filed later than five years after the date of disposition. (4) An administrative authority upon receipt of an application under paragraph (1) shall notify the applicant of the results of re-examination of the disposition (including whether re-examination has been conducted as well as decisions to uphold, revoke, withdraw, or amend the disposition, or the like) within 90 days (180 days in the case of a collegiate administrative agency) after the receipt of the application, in the absence of special circumstances to the contrary, provided that if such notice cannot be made within 90 days (180 days in the

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Article 37 of the GAPA introduced a system that allows for a re-examination of a disposition that can no longer be contested through contestation procedures due to reasons such as the expiration of the filing period or when the facts or legal relations on which the disposition was based later become favorable to a party, subject to certain requirements. As a retrial against a court’s final judgment in civil and criminal cases is also permitted if certain requirements are met, this system is expected to expand the rights and remedies of the public, as it guarantees the opportunity for re-examination of administrative dispositions from the perspective of justice and equity.

d. Establishing the Legal Basis for the Statutory Interpretation System

case of a collegiate administrative agency) due to any unavoidable cause, the period may be extended once by up to 90 days (180 days in the case of a collegiate administrative agency), being counted from the day following the expiration date, and the grounds for extension shall be notified to the applicant. (5) A decision to uphold a disposition out of the results of the re-examination of dispositions under paragraph (4) may not be appealed through administrative appeal, administrative litigation, or any other means of litigation. (6) No revocation under Article 18 and withdrawal under Article 19 by an administrative authority shall be affected by re-examination of a disposition. (7) Except as provided in paragraphs (1) through (6), matters regarding methods and procedures for reexamination of dispositions and the like shall be prescribed by Presidential Decree. (8) This article shall not apply to any of the following cases: 1. Matters regarding dispositions such as disciplinary action under statutes or regulations on the personnel management of public officials; 2. Matters implemented subject to resolution by the Labor Relations Commission under Article 2-2 of the Labor Relations Commission Act; 3. Matters implemented in accordance with statutes and regulations on criminal affairs, criminal administration, or preventive orders; 4. Matters regarding entry into and departure from the country, refugee recognition, naturalization, and reinstatement of the nationality of aliens; 5. Matters regarding the imposition and collection of administrative fines. 6. Where the application is exempted by an individual statute.

Article 40 (Interpretation of Statutes or Regulations) (1) Anyone who has questions about the details of a statute or regulation, etc., may request the head of a central administrative agency having jurisdiction

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Article 40 of the GAPA provides that anyone who has questions about the details of a statute or regulation, etc., may request the head of a central administrative agency having jurisdiction over the statute or regulation, etc., or the head of a local government having jurisdiction over municipal ordinances and rules to issue an interpretation of the statute or regulation. This statutory interpretation system is expected to prevent unnecessary legal disputes and damage caused by incorrect dispositions by resolving questions about the details of statutes and regulations in advance.

Promoting Proactive Administration and Regulatory Innovation

a. Specifying the Implementation of Proactive Administration in the Law

To provide a legal basis for the already enacted Presidential Decree on the Operation Regulations for Proactive Administration, Article 4 of the

over the statute or regulation, etc. (hereinafter referred to as “competent agency”) or the head of a local government having jurisdiction over municipal ordinances and rules to issue an interpretation of the statute or regulation. (2) The head of a competent agency and the head of a local government having jurisdiction over municipal ordinances and rules shall be responsible for interpreting and executing respective statutes or regulations, etc., under his or her jurisdiction in compliance with the Constitution and the purport of the relevant statutes or regulations, etc. (3) A person who has an objection to a competent agency or its interpretation of a statute or regulation may request an agency specializing in interpreting statutes or regulations to make an interpretation of a statute or regulation, as prescribed by Presidential Decree. (4) Matters necessary for the procedures for interpreting statutes or regulations shall be prescribed by Presidential Decree.

Article 4 (Implementation of Proactive Administration) (1) Administration shall be proactively conducted for the public interest. (2) The state and local governments shall create all the conditions to enable public officials under their jurisdiction to proactively perform their duties for the public interest and shall promote policies and measures related thereto. (3) Specific details of policies for proactively implementing administration and facilitating active administration under paragraphs (1) and (2) and the like shall be prescribed by Presidential Decree.

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GAPA introduced provisions on proactive administration. It is expected that proactive administration will be applied to all areas of public administration.

b. Clarifying When A Report Requiring Acceptance Becomes Effective

Theories and precedents have divided “reports” into two types. One is a “self-contained report,” which becomes effective when the report arrives at the administrative receiving agency, and the other is a “report requiring acceptance,” which becomes effective when the administrative authority accepts it. However, interpreting and distinguishing between the two types of reports based on the contents of individual statutes was very difficult for the public, as well as officials in charge of law enforcement, causing confusion in the field. To solve this problem, Article 34 of the GAPA stipulates that a report can be recognized as a report requiring acceptance only if the law specifies that acceptance is required. This is expected to ease regulations on reporting and increase the transparency and predictability of the reporting system.26) In particular, by attempting to organize the various individual laws that regulate the reporting system, it has become possible to efficiently promote regulatory innovation at once. However, considering the following points, it can be criticized that there are certain limitations to securing predictability, that is, the meaning of the phrase “if a statute expressly provides that such report requires acceptance” is not necessarily clear, and it is still left to the interpretation of the courts to determine whether a report takes effect only upon the acceptance (a report requiring acceptance) even if the statute regulates acceptance of the report.

26) See, e.g., id. at 31.

Article 34 (Effects of Reports Depending on Acceptance) In the case of a report that requires notification of specified matters to an administrative agency as prescribed by a statute or regulation, etc., if a statute expressly provides that such a report requires acceptance (excluding cases where acceptance is provided as an internal affairs process of an administrative agency), such a report shall take effect only upon the acceptance thereof by the administrative authority.

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Promoting Administrative Efficiency and Uniformity

a. Clarifying Standards for the Application of Law

Due to the frequent amendment of administrative statutes and regulations, there was no clear legal basis as to whether the law before or after amendment should be applied in the event of an amendment; there was confusion regarding the criteria for applying the law due to different judgments in different cases. In response, Article 14 of the GAPA was enacted to clarify the criteria for the application of the law, providing greater predictability and legal stability for the public and officials in charge, and unified law enforcement.27)

b. Systematization of Similar or Common Systems

27) Id.

Article 24 (Standards for Deemed Authorization or Permission) (1) The term “deemed authorization or permission” in this section means that a person who has obtained authorization or permission (hereinafter referred to as “primary authorization or permission”) shall be deemed to have obtained

Article 14 (Standards for the Application of Law) (1) Except as otherwise provided in statutes or regulations, etc., a new statue or regulation, etc., shall not apply to facts or legal relationships that have been completed or terminated before the statute or regulation, etc., enters into force. (2) A disposition made at the request of a party shall comply with the statutes or regulations, etc., as at the time the disposition is imposed, except as otherwise provided in statutes or regulations, etc., or except where there are special circumstances that make it impracticable to apply statues or regulations, etc., as at the time the disposition is imposed. (3) With respect to the establishment of an act violating a statute or regulation, etc., and sanctions for such act, the statutes or regulations, etc., as at the time such act is performed shall apply except as otherwise provided in statutes or regulations, etc., provided that if the act ceases to be a violation under statutes or regulations, etc., due to an amendment thereof after such act is committed or if the standards for sanctions become lenient, the amended statutes or regulations, etc., shall apply except as otherwise provided in the relevant statutes or regulations, etc.

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various other authorizations or permissions related thereto (hereinafter referred to as “relevant authorization or permission”), as prescribed by statutes. (2) Where a person intends to obtain deemed authorization or permission, he or she shall also submit documents necessary for obtaining the relevant authorization or permission when applying for the primary authorization or permission, provided that if it is impossible to submit the documents simultaneously due to any unavoidable cause, the documents may be submitted not later than the deadline separately prescribed by the administrative authority authorized to grant the primary authorization or permission. (3) The administrative authority authorized to grant the primary authorization or permission shall consult with the relevant authorizing or permitting administrative authority before granting the primary authorization or permission. (4) Upon receipt of a request for consultation under paragraph (3), the relevant authorizing or permitting administrative authority shall submit its opinion within 20 days from the date of receipt of such a request (excluding the period required for the procedures prescribed in the proviso of paragraph (5)). In such cases, consultations shall be deemed held if no opinion on consultations is submitted within the period prescribed in the former part (referring to the extended period if the period for submitting an opinion is extended in accordance with the statutes or regulations governing the processing of civil petitions). (5) Upon receipt of a request for consultation under paragraph (3), no relevant authorizing or permitting administrative authority shall respond to such a request for consultation in violation of the relevant statutes or regulations, provided that the procedures necessary for related authorization or permission, such as deliberation and hearing of opinions, shall be conducted only when it is expressly prescribed by statute that the relevant procedures are required, even in the case of a deemed authorization or permission. Article 25 (Effect of Deemed Authorization or Permission) (1) Matters consulted on pursuant to Article 24 (3) and (4) shall be deemed to have obtained relevant authorization or permission when the primary authorization or permission has been obtained. (2) The effects of deemed authorization or permission shall be limited to the relevant authorization or permission set forth in the statutes governing primary authorization or permission. Article 26 (Follow-Up Management of Deemed Authorization or Permission) (1) In the case of a deemed authorization or permission, the relevant authorizing or permitting administrative authority shall be deemed to have granted the relevant authorization or permission directly and shall take necessary measures, such as management and supervision, pursuant to

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relevant statutes or regulations. (2) Where a change in a primary authorization or permission is made after granting such authorization or permission, Articles 24 and 25 and paragraph (1) of this article shall apply mutatis mutandis. (3) Except as provided in this section, methods of deemed authorization or permission and other necessary details shall be prescribed by Presidential Decree. Article 28 (Standards for Imposing Penalty Surcharges) (1) An administrative agency may impose a penalty surcharge on a person who violates his or her obligation under statutes or regulations, etc., as a disciplinary measure for such violation, as prescribed by statutes. (2) The following matters regarding penalty surcharges shall be clearly prescribed in statutes that form the basis of penalty surcharges: 1. Persons imposing and collecting charges; 2. Grounds for imposition; 3. Upper limits; 4. In cases of collecting additional charges, matters relevant thereto; 5. Where default may result in compulsory collection of a penalty surcharge or additional charge, matters relevant thereto. Article 29 (Extensions of Payment Deadline for Penalty Surcharges and Payment by Installment) Penalty surcharges shall be paid in a lump sum, in principle, provided that, where an administrative authority deems that a person on whom a penalty surcharge is imposed has difficulty in paying the penalty surcharge in a lump sum for any of the following reasons, it may extend the payment deadline or allow him or her to pay the penalty surcharge in installments. In such cases, it may require him or her to provide security, if deemed necessary: 1. Where the person has sustained a substantial loss to his or her property due to a disaster, etc.; 2. Where the person’s business is in a serious crisis due to a deterioration in business conditions; 3. Where a lump sum payment of the penalty surcharge is likely to result in considerable financial hardship; 4. If there exists any other reason equivalent to those specified in subparagraphs 1 through 3, as prescribed by Presidential Decree. Article 31 (Imposition of Charges for Compelling Compliance) (1) The following matters regarding charges for compelling compliance shall be clearly prescribed in statutes that form the basis for imposing charges for compelling compliance, provided that excluded herefrom are cases where the legislative purpose or legislative intent is deemed highly likely to be impaired by stipulating matters stated in subparagraph 4 or 5, as prescribed by Presidential Decree. 1. Persons imposing and collecting charges;

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The deemed authorization or permission system, which considers the obtaining of a primary authorization or permission as the obtaining of other authorization or permission related thereto, as prescribed by statutes, was introduced in various individual statutes to ease regulations and improve public convenience. However, the content of the regulations varied slightly, and there were no clear principles and standards regarding compliance with the procedural requirements of related authorization or permission, post-management, supervision, etc. To solve this problem, Article 24 of the GAPA provides general regulations on the standards for deemed authorization or permission, with Article 25 on the effect of deemed authorization or permission and Article 26 on the follow-up management

Requirements for imposition;
Amount to be imposed;
Standards for calculation of the amount to be imposed;
Number of impositions per year or the upper limits thereof. (2) An administrative authority may increase or reduce the amount of a charge for compelling compliance in consideration of the following:
The motives, purposes, and results of the non-performance of the obligations;
The degree and recidivism of the non-performance of any obligation;
Other grounds deemed necessary to achieve administrative purposes. (3) An administrative authority shall issue a written warning to an obligor for a specified appropriate period, to the effect that a charge for compelling compliance will be imposed if the obligor fails to perform administrative obligations by a set deadline, in advance of imposition of the charge. (4) Where an obligor fails to perform his or her administrative obligations by the deadline set forth in the warning under paragraph (3), the administrative authority shall clearly notify the obligor of the amount of, grounds for, and timing of imposition of the charges for compelling compliance in writing. (5) An administrative authority may repeatedly impose charges for compelling compliance until an obligor performs his or her administrative obligations, provided that when an obligor performs his or her obligations, a new imposition of charges for compelling compliance shall be immediately suspended, but the charges for compelling compliance already imposed shall be collected. (6) If a person on whom a charge for compelling compliance has been imposed fails to pay it by the payment deadline, the administrative authority shall collect the charge in the same manner as delinquent national taxes, or pursuant to the Act on the Collection, etc., of local administrative penalty charges.

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of deemed authorization or permission, enabling unified and systematic regulation and law enforcement, and increased administrative efficiency.

In addition, the system of penalty surcharges and charges for compelling compliance, which had been operated in various individual statutes with slightly different contents, will be systematized and the efficiency of law enforcement and administration will be improved by making general provisions in the GAPA.

c. Establishing the Legal Basis for Contracts Under Public Law

Article 27 of the GAPA establishes the legal basis for contracts under public law, which are a representative form of nonauthorized administration. It stipulates the permissibility and limitations of contracts under public law, the form of written contracts, and the obligation to consider the public interest and the interests of third parties involved in the contracts under public law. In addition, the modification, termination, and invalidity of contacts under public law, the introduction of contracts under public law as a substitute for disposition, and the provision of compensation for damages in the event of termination of contracts under public law due to public interest were also considered but ultimately deleted in the legislative process.

Article 27 (Conclusion of Contracts under Public Law) (1) Where it is necessary to achieve administrative purposes to the extent of not violating statutes or regulations, etc., administrative authorities may enter into a contract concerning legal relations under public law (hereinafter referred to as “contract under public law”). In such cases, a contract shall be prepared, clearly stating the purpose and details of the contract. (2) In selecting the other party to a contract under public law and stipulating the contract, the administrative authority shall take into consideration the public interest of a contract under public law and the interests of any third party.

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III. ‌Changes and Impacts on Administrative Practice Since

the Enactment and Enforcement of the GAPA

A. Legislative Areas

‌Establishment and Activities of the National Public Administrative

Legislation Committee

Following the enactment and enforcement of the GAPA, the National Public Administrative Legislation Committee was established pursuant to Article 39 (2) of the GAPA and Article 14 of the Enforcement Decree of the GAPA in order to improve the legal system in the field of administration and establish consistent standards for the application of laws. The National Public Administrative Legislation Committee is responsible for (1) introducing and improving standards that are commonly applied to statutes and regulations, (2) conducting surveys and analyzing the impact of statutes and regulations, and (3) responding to the advice of the Minister of Justice on matters deemed necessary for the legal system. The committee is composed of 50 members for a term of two years, including the co-chairpersons (the Minister of Government Legislation and the civilian chairperson). The committee is organized into three subcommittees: the subcommittee on the operation and amendment of the GAPA, the subcommittee on the improvement of the administrative law system and the amendment of statutes and regulations, and the subcommittee on legislative standards and legislative impact analysis. It is significant that specialized committees have been established and are operating on a permanent basis, covering not only the current status and amendments to the GAPA but also the drafting standards for the administrative law system and the overall issues related to legal system improvement and legislation. It is expected that systematization and uniform regulation of the administrative law system will be possible.

‌Emergence of a New Government Legislation Model Led by the Ministry of

Government Legislation

The GAPA was prepared and promoted by the Ministry of Government Legislation. It was appropriate for the Ministry of Government Legislation

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to take the lead in preparing and promoting the legislation, as the GAPA is a law that can be commonly related to the work areas of various ministries and stipulates general rules of administrative substantive law for the entire administrative field, requiring advanced legal knowledge and legal work experience.28) In the case of government legislation, the ministries in charge of the bills usually drafted the bills themselves and went through the process of finalizing the bills after review by the Ministry of Government Legislation. Since the Ministry of Government Legislation, as the Central Administration Organization specialized in legislation, was mainly in charge of supervising and supporting the government’s legislative activities of each administrative department,29) there were very few cases in which the Ministry of Government Legislation took the lead in preparing and drafting the bills. It is hoped that the new model of government legislation, in which the Ministry of Government Legislation leads and multiple ministries jointly participate in the drafting of bills that have a wide scope of impact common to multiple executive branches and require advanced legal knowledge and legal work experience, will be utilized more frequently in the future.

B. Administrative Area

Establishment of a Behavioral Norm in Administrative Practice

The GAPA contains provisions that function as a legislative guideline,30) behavioral norm,31) and adjudicatory norms.32) Among them, the

28) See, e.g., Rhee, supra note 24, at 20-21.

29) The duties of the Ministry of Government Legislation are to examine bills and treaties to be presented to the Council of Ministers, examine prime ministerial decrees, sub-decrees, and directives and rules, prepare bases for legislation in accordance with the orders of the President and Prime Minister, supervise government’s legislation activities, assist in the development of legislation, interpret statutes and regulations (statutory interpretation), review and consult bills proposed by the National Assembly, support autonomous legislation, manage and provide national legal information, and manage other affairs related to the legal system. See Beobjecheo jigje [Presidential Decree on the Organization of the Ministry of Government Legislation] art. 2 (S. Kor.).

30) For example, Article 22, Paragraph 1 stipulates the matters to be prescribed by the law based on which sanctions are imposed. Article 5, Paragraph 2 provides for efforts to enact or amend other laws. Article 38 provides for legislative activities of the administration.

31) For example, the documentation of contracts under the public law (art. 27, para. 2) as a norm on the form and procedure of individual administrative action, the effectiveness of disposition (art. 15), subordinate clauses (art. 17), ex-officio revocation or withdrawal of dispositions (art. 18-19), etc. as a norm on the substance of individual administrative action.

32) For example, the general principles of administrative law (art. 8-13), the standards for

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enactment of the GAPA is significant in that it establishes a “behavioral norm” that applies to public officials on the front lines of administrative practice.33) Prior to the enactment of the GAPA, the general principles of administrative law, which serve as a measure for judging the illegality of dispositions, were generally only an unwritten or uncodified source of law recognized by academic theories and precedents, which led to legal instability in the enforcement and application of the law in practice by public officials. However, after the enactment and enforcement of the GAPA, the general principles of administrative substantive law (Articles 8–13 of the GAPA) were codified through a legislation enacted by the National Assembly, so the general principles of administrative substantive law are now established as the de facto behavioral norm for public officials. If a public official violates the general principles of administrative substantive law set forth in the GAPA in applying and enforcing the law, he or she may be subject to disciplinary liability for “breach of the duty of good faith,” which refers to the duty to comply with the law.

In addition, Article 17 of the GAPA clearly stipulates that an administrative authority may attach subordinate clauses (referring to conditions, deadlines, encumbrances, reservation of the right to withdrawal, etc.), where it has discretion in imposing a disposition, thereby encouraging public officials in charge of discretionary authorization or permission to move away from their rigid and passive attitudes and practices of easily rejecting applications. Although precedents prior to the enactment and enforcement of the GAPA had ruled the same, there was still no explicit statutory basis for this, so suspicions could be raised that discretionary authorization or permission with subordinate clauses attached was a preferential treatment without statutory provisions. However, with the enactment and enforcement of the GAPA, discretionary authorization or permission with subordinate clauses attached can now be activated flexibly, depending on the situation based on the specific law.

Article 38 of the GAPA sets forth specific provisions on the principles, procedures, and standards to be followed in the legislative activities of the

exercising discretion (art. 21), and the reports requiring acceptance (art. 34), which serve as a measure for judging the illegality of dispositions.

33) See, e.g., Rhee, supra note 24, at 18-20.

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administration and expands the scope of its application to the formulation of the legislative plan for bills submitted by the government to the National Assembly.34) This general regulation for the legislative activities of the administration is necessary and appropriate, given the increasing importance of administrative legislation and administrative dispositions as a type of administrative action to fulfill various administrative tasks. Previously, the formulation and implementation of such governmental legislation plans were regulated by Presidential Decree, but the GAPA clarifies the significance and limitations of legislative activities of the administration by establishing a legal basis at the level of law as a behavioral norm for such activities.

‌Increased Administrative Prudence and Expansion of Response to Rights and

Interest Relief

The GAPA provides a general basis for a party that has an objection to a disposition imposed by an administrative authority to raise an objection with the administrative agency that imposed the disposition (Article 36). It has been mentioned earlier that the GAPA expands the rights and remedies of the public by introducing a re-examination of dispositions system that allows a party to apply to the administrative agency to revoke, withdraw, or amend a disposition within 60 days from the date the party has become aware of certain grounds for the disposition, even if the disposition, except for sanctions and administrative compulsion, can no longer be contested through any means of litigation (Article 37). On the other hand, these provisions make it possible to review the legality of an administrative disposition, even after it has been imposed, and even the dispositions that have become uncontestable due to the passage of the controversy period can be reviewed again through re-examination, enabling public officials in charge of administrative dispositions to more carefully observe the legality of the administration in the first place. In addition, in response to increased public awareness of the right to seek redress and the increased number of applications for redress, the law requires administrative agencies to strengthen their personnel and organizations to respond to objections and

34) Id. at 11.

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to make preparations, including the establishment of an administrative disposition review committee.35)

C. Judicial (Trial) Area

Enactment and Enforcement of Regulations on Administrative Litigation36)

The Regulations on Administrative Litigation are enacted and enforced as one of the Korean Supreme Court regulations to further enhance the convenience of the public’s access to administrative courts and to contribute to the protection of the public’s administrative rights and interests through the proper and prompt exercise of their right to a trial, reflecting the progress made in administrative litigation since the opening of the Seoul Administrative Court on March 1, 1998.37) The Regulations on Administrative Litigation, similar to the GAPA, codify the principles of administrative law established by precedents and specify the accumulated practice of administrative litigation. The Regulations on Administrative Litigation were drafted, promulgated, and enforced not long after the enactment and enforcement of the GAPA, which succeeded in norming and codifying the principles of administrative law. Although the Regulations on Administrative Litigation differ from the GAPA in terms of the competent entity for enactment, the subject matter, and the content, it is similar to the GAPA in that it codifies the established precedents and practices in the field of administrative law and can be considered a major change in the field of administrative trial practice since the enactment and enforcement of the GAPA.

35) For example, the Ministry of National Defense has a directive, “Directive on the Operation of the Administrative Disposition Review Committee”, which stipulates the composition and operation of the committee that responds to applications for review of administrative dispositions.

36) Here, “Regulations on Administrative Litigation” refers to the Korean Supreme Court Regulations on Administrative Litigation.

37) See National Court Administration, Haengjeongsosonggyuchig Haeseol [Commentary

to the Supreme Court Regulations on Administrative Litigation] 1 (2023), https://www.scourt. go.kr/portal/dcboard/DcNewsViewAction.work?gubun=41&seqnum=14434&cbub_ code=000220# (In Korean).

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Changing Adjudicatory Norm

While the enactment and enforcement of the GAPA did not immediately change the face of administrative trials, more than three years later, there is a growing trend of claims of illegality of administrative actions based on the provisions of the GAPA. In other words, in most cases, where general principles of administrative law are claimed as grounds for the illegality of an administrative action, theories and precedents are still cited as the basis for the general principles, but as the enactment and enforcement of the GAPA has become known, more and more cases have been filed citing the relevant provisions of the GAPA when invoking the general principles of administrative law as grounds for the illegality of an administrative action. Furthermore, among the lower court cases, there are cases in which the illegality of a sanction was argued and accepted by the trial court by invoking the purpose of the five-year limitation period for sanction provisions in Article 23 of the GAPA, even though the violation did not occur at the time of the enforcement and application of the GAPA.38) In addition, there are cases of judgment regarding Article 14 of the GAPA that stipulates the standards for the application of law.39)

IV. Future Challenges of the GAPA

A. Amendments to the GAPA to Improve and Overcome Its Limits

Although the GAPA has been enacted and enforced, it is still incomplete as a general law on public administration. At the very least, in the future, it will be necessary to consider supplementing the regulations through amendments to the GAPA on matters that have been discussed since the drafting stage. Representative examples include the succession of business licensee status, the succession of the effects of sanctions, and the conversion

38) See Seoulhaengjeongbeobwon [Seoul Admin. Ct.], Apr. 27, 2021, 2020Guhap69649 (S. Kor.).

39) See Seoulhaengjeongbeobwon [Seoul Admin. Ct.], Apr. 8, 2021, 2020Guhap83140 (S. Kor.); Jejujibangbeobwon [Jeju Dist. Ct.], July 5, 2022, 2021Guhap1316 (S. Kor.); Seoulhaengjeongbeobwon [Seoul Admin. Ct.], June 25, 2024, 2024Gudan50721 (S. Kor.).

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and cure of defective dispositions. Furthermore, among the contents of provisions stipulated in the GAPA, the following should be considered to be supplemented in order to protect the rights and interests of the public and improve the appropriateness of administration: improvement of the system for re-examination of dispositions, clarification of the right to apply for ex-officio revocation or withdrawal, observance of the principle of reservation of laws when attaching subordinate clauses to discretionary dispositions, and supplementing the contents of general law to administrative compulsion.40) In addition, to better protect the rights and interests of the public, future amendments to the GAPA may include provisions on the delegation, entrustment, and agency of authority, clarification of grounds for invalidity as grounds for defects in administrative actions, and the effects of defects in administrative procedures.41)

B. Toward A Unified Codification of Administrative Law

The enactment and enforcement of the GAPA is the starting point, and the preparation of an “integrated general administrative code” is being discussed as a future legislative issue.42) The purpose of enacting the GAPA is to focus on the “unified regulation” of the general principles and fundamentals of administrative law and the “systematization” of administrative law. In this regard, it is possible to discuss the enactment of a “General Administrative Code” that would cover all major individual statutes in the field of administrative law, including the Administrative Procedures Act, the Administrative Appeals Act, the Administrative Vicarious Execution Act, and the Framework Act on Administrative Regulation.

There is a discussion that the Administrative Procedures Act and the GAPA should be unified.43) In the current legislative situation, both the

40) For a detailed discussion of this, see, e.g., Rhee, supra note 19, at 26-29.

41) For a detailed discussion of this, see, e.g., id. at 29-31.

42) See, e.g., id.

43) See, e.g., Kim, supra note 23, at 60; Yong-wook Kim, Haengjeonggibonbeobui myeongam-e daehan sogo [Evaluation of the “Framework Act on Public Administration”], 24(3) L. Rev. 147, 181-

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Administrative Procedures Act and the GAPA must be examined for “procedural matters” related to administration, resulting in a “division of regulations” regarding administrative procedures.44) To date, the GAPA has been enacted in a way that avoids overlapping with the existing regulations of the Administrative Procedures Act,45) but it is expected that the two laws will be amended in a “mutually competitive” manner in the future. At least some of the subjects regulated by the Administrative Procedures Act and the GAPA are common to both, such as the protection of trust (Article 4, paragraph 2, of the Administrative Procedures Act; Article 12 of the GAPA) and reports (Article 40 of the Administrative Procedures Act; Article 34 of the GAPA), duty of good faith (Article 4, paragraph 1, of the Administrative Procedures Act; Article 11, paragraph 1, of the GAPA), and the establishment and publication of disposition standards and standards for sanctions (Article 20, paragraph 1, of the Administrative Procedures Act; Article 22, paragraph 1, of the GAPA).46) Legislative improvement for these subjects is requested as a priority.

There is also a discussion that the Administrative Appeals Act and the GAPA should be integrated through the “objection system.”47) The objection system was enacted in Article 36 of the GAPA as a general system for autonomous administrative control of disposal agencies and as a way to

84 (2021) (In Korean); Park, supra note 17; Jae-Yoon Park, Haengjeonggibonbeob jejeong-ui seonggwawa gwaje – cheobungwanlyeon gyujeongdeuleul jungsimeulo [Achievements and Challenges of General Act on Public Administration – Focused on Disposition Provisions] 65 Admin. L.J. 1, 26-27 (2021) (In Korean); Chae & Ha, supra note 2, at 49.

44) For example, the separation of self-contained reports (Article 40 of the Administrative Procedures Act) and reports requiring acceptance (Article 34 of the GAPA) are problematic.

45) For example, seven issues that were discussed during the drafting stage of the GAPA, which is under the jurisdiction of the Ministry of Government Legislation (in other words, the Ministry of Government Legislation is the department in charge of matters related to the drafting of bills during the enactment and amendment of the GAPA), such as affirmation, publication of the facts of violations, administrative plans, unified publication of standards for authorization and permission systems, ensuring public participation in public administration, innovation of administrative affairs, and cooperation among administrative authorities, were transferred to the amendments to the Administrative Procedures Act, which is under the jurisdiction of the Ministry of the Interior and Safety, through consultation between the two ministries.

46) For more details on this, see, e.g., Rhee, supra note 19, at 9-13.

47) Id. at 15-25.

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redress the rights and interests of the public. It can be argued that the “administrative appeals system” under the Administrative Appeals Act, which has a function similar to the objection system, should also be regulated together as an integrated general administrative law. If the Administrative Procedures Act, which functions as prior control in administration actions, is also incorporated, it is expected that “administrative procedures, objections, and administrative appeals” will be regulated at once in one unified law with an organic connection, thereby securing consistent regulations. In other words, each role and function can be linked to the timing and stage of administrative disposition. Specifically, “administrative procedure” is responsible for preliminary remedies up to the imposing of an administrative disposition, “objection” realizes rights relief through administrative self-control against the administrative agency that imposed a disposition, and “administrative appeal” provides quasi- judicial rights relief of an imposed administrative disposition through a separate Administrative Appeals Committee.

In addition, since the GAPA has been enacted to define and regulate each type of administrative compulsion, it will be possible to consider the direction of legislation to introduce specific regulations on administrative compulsion in earnest.

V. Conclusion

In this article, I have briefly discussed the process of enacting the GAPA, its significance, limitations, and main contents; the changes and impacts on administrative practice since its enforcement; and the direction of future amendments to the GAPA and the promotion of integrated codification. As only three years have passed since the enactment of the GAPA, there are few statistics or data that can directly and objectively show the changes and impacts on administrative practice, making it difficult to provide more detailed descriptions and discussions. Significant impacts and changes in administrative practice as a result of the enactment of the GAPA need to be viewed over a slightly longer period of five years or more, and it is requested to promote a virtuous cycle of mutual influence and change between legislation and administration that can be reflected in

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the supplementary and revision work of the GAPA based on a thorough analysis and review. I would like to leave this aspect as a detailed research issue for future research.

It is hoped that this article will provide a small opportunity to share comparative legal knowledge on the codification of administrative law and its application in Korea, and that it will lead to constructive discussions for the development of administrative law systems and practices in each country.