법제처 로고

<연구자> 

연구책임자 : 박균성 교수(경희대 법과대학)
공동연구자 : 김재광 박사(한국법제연구원)
                       선정원 교수(명지대 법정대학)
                       정하명 교수(삼척대 행정학과)
 

<목차>

제1장 서 론 ······························································································· 7
제1절 연구의 목적 ················································································· 7
제2절 연구방법 ····················································································· 10
 

제2장 주요 외국의 법제업무 및 행정심판 ························ 11
제1절 프랑스에서의 법제업무 및 행정심판 ······························ 11
Ⅰ. 법제조직 ······················································································· 11
  1. 국사원 ························································································· 11
  2. 내각사무처 ················································································· 14
Ⅱ. 프랑스에서의 행정부내 입법절차 ··········································· 21
  1. 법령안의 작성 ··········································································· 21
  2. 관계부서와의 협의 ··································································· 28
  3. 경제사회위원회의 자문절차 ··················································· 29
  4. 국사원(Conseil d'Etat)의 심사절차 ······························ 30
  5. 국사원 및 경제사회위원회 이외 조직의 자문절차 ··········· 36
  6. 국무회의의 심의 ······································································· 37
  7. 서명 및 부서 ············································································· 38
  8. 시행명령제정의 보장 및 촉진 ··············································· 39
Ⅲ. 행정기관에 대한 법률자문 ······················································· 40
  1. 주무장관의 유권해석 ······························································· 40
  2. 내각사무처의 법령해석 등 법률자문 ··································· 41
  3. 국사원의 해석 ··········································································· 41
Ⅳ. 행정심판 ······················································································· 43
  1. 행정심판기관 ············································································· 43
  2. 행정심판전치 여부 ··································································· 43
  3. 행정심판에서의 조정 ··········································· 43                                                                       

Ⅴ. 요약 및 시사점 ······················································ 43
  1. 법제조직 ·············································································· 43
  2. 프랑스에서의 행정부내 입법절차 ········································· 44
  3. 행정기관에 대한 법률자문 ····················································· 45
제2절 독일의 법제업무 및 행정심판 ··········································· 46
Ⅰ. 법제업무 ······················································································· 46
  1. 연방법무부의 역사, 조직 및 과제 개관 ····························· 46
  2. 독일의 입법과정과 연방법무부의 역할 ······························· 48
  3. 연방법무부의 법률초안검토 ··················································· 53
Ⅱ. 독일의 행정심판 ········································································· 56
  1. 행정심판절차의 대상과 심판적격 ········································· 56
  2. 재결청 ························································································· 57
  3. 행정심판의 근거 ······································································· 57
제3절 미국의 법제업무 및 행정심판 ··········································· 57
Ⅰ. 법제업무 ······················································································· 57
  1. 들어가며 ····················································································· 57
  2. 관리예산처(OMB)의 규범심사(regulatory review)에 관한 이론적 고찰 ········································ 59
  3. 관리예산처(OMB)의 규범심사(regulatory review)의 실정법적 근거 ·············································· 61
  4. 현재의 관리예산처(OMB) 중심의 규범심사(regulatory review) ······················································ 65
  5. 미국의 관리예산처(OMB)의 규정심사 경험의 시사점 ······· 77
Ⅱ. 미국의 행정심판 ········································································· 79
  1. 들어가며 ····················································································· 79
  2. 행정심판과 소송과의 관계 ····················································· 81
  3. 환경심판위원회 ········································································· 83
  4. 환경강제결정(administrative enforcement decisions)에 대한 심판 ···················· 84
  5. 허가결정(permit decisions)에 대한 심판 ···················· 88
  6. 소 결 ··························································································· 89
제4절 일본의 법제업무 및 행정심판 ··········································· 90
Ⅰ. 일본의 법제업무 ········································································· 90
  1. 일본의 입법과정에 있어서 행정부의 역할 ························· 90
  2. 내각법제국의 설치근거 ··························································· 92
  3. 내각법제국의 조직 ··································································· 93
  4. 내각법제국의 사무 ··································································· 96
  5. 유권해석 ·················································································· 102
  6. 국회답변 ·················································································· 103
  7. 시사점 ······················································································ 104
Ⅱ. 일본의 행정불복신청제도 ······················································ 106
  1. 행정불복신청제도의 연혁 ···················································· 106
  2. 불복신청의 종류 ···································································· 107
  3. 불복신청사항 ·········································································· 108
  4. 불복신청의 요건 ···································································· 108
  5. 불복신청의 심리 ···································································· 110
  6. 불복신청의 형식 ···································································· 111
  7. 교시제도 ·················································································· 112
  8. 행정소송과의 관계 ································································ 112
  9. 시사점 ······················································································ 113
 

제3장 법제기능 현황과 개선방안 ·········································· 115
제1절 정부입법계획 및 법령정비의 현황과 개선방안 ········ 115
Ⅰ. 정부입법계획의 현황과 개선방안 ········································ 115
  1. 현황과 문제점 ········································································ 115
  2. 정부입법계획의 장점 ···························································· 122
  3. 개선방안 ·················································································· 124
  4. 결 어 ························································································ 128
Ⅱ. 법령정비의 현황과 개선방안 ················································ 131

  1. 문제점 ······················································································ 132
  2. 개선방안 ·················································································· 134
제2절 법령심사 현황과 개선방안 ··············································· 136
Ⅰ. 법령등 심사현황 ······································································ 136
  1. 의의 ·························································································· 136
  2. 법령안의 심사 ········································································ 136
  3. 조약안의 심사현황 ································································ 141
  4. 대통령 훈령안 등의 심사 ···················································· 144
Ⅱ. 법령안등의 심사절차의 문제점과 개선방안 ······················ 145
  1. 법령안의 심사절차의 문제점과 개선방안 ························ 145
  2. 조약안의 심사절차의 문제점과 개선방안 ························ 153
제3절 법령해석제도의 현황과 발전방안 ·································· 157
Ⅰ. 현황과 문제점 ·········································································· 157
  1. 법령해석의 요청 및 법령해석기관 ···································· 157
  2. 법제처에 대한 법령해석요청의 요건 ································ 158
  3. 법제처의 법령해석 및 통보 ················································ 159
  4. 유권해석 처리현황 ································································ 159
  5. 헌법재판 및 행정소송에서의 국가의 법령해석 ·············· 160
Ⅱ. 개선방안 ···················································································· 161
  1. 법령해석에 관한 총괄기능 강화 ········································ 161
  2. 유권해석요건의 완화 ···························································· 161
  3. 법제처 해석기관의 합의제화 ·············································· 162
  4. 법률문제자문기능의 확대 ···················································· 163
  5. 헌법재판 및 행정소송에서의 법제처의 법령해석의견제시권 부여 ·············· 163
Ⅲ. 행정심판의 현황 및 문제점 ·················································· 165
  1. 국무총리행정심판위원회 ······················································ 165
  2. 특별행정심판기관 ·································································· 171
  3. 유사 권리구제와의 관계 ······················································ 187
Ⅳ. 개선방안 ···················································································· 191
  1. 국무총리행정심판위원회 ······················································ 191
  2. 특별행정심판기관의 남설 방지 ·········································· 192
  3. 국민고충처리 및 감사원에의 심사청구와의 역할 재정립 ··· 193
  4. 조정제도의 도입 ···································································· 194
  5. 행정심판사제도의 도입 ························································ 194
제5절 법령정보제공 ·········································································· 195
Ⅰ. 현황과 문제점 ·········································································· 195
  1. 국내법령제공의 현황과 문제점 ·········································· 195
  2. 해외법령제공의 현황과 문제점 ·········································· 197
Ⅱ. 개선방안 ···················································································· 197
  1. 국내법령제공 ·········································································· 197
  2. 해외법령정보의 제공 ···························································· 199
제6절 법제처조직의 현황과 개편방향 ······································· 199
Ⅰ. 법제조직에 대한 재평가와 부처이기주의와 사회적 갈등의 조정자로서의 역할 ·············· 199
  1. 정부조직개편의 목적 ···························································· 199
  2. 민주적 시장경제의 발전을 위한 핵심적 장애요소로서 사회적 갈등의 문제 ····················· 201
  3. 권위주의적 행정문화와 부처이기주의의 극복필요 ········ 202
  4. 부처이기주의와 사회적 갈등에 대한 입법에 의한 조정자로서의 법제처 ····· 204
Ⅱ. 법제처의 연혁과 현황 ···························································· 206
  1. 시대별 부처변천 ···································································· 208
  2. 1998년의 정부조직개편으로 인한 법제처조직의 변화 및 현재의 기구 ········ 209
  3. 법제처의 현행 조직과 정원 ················································ 212
  4. 시사점 ······················································································ 217