미국의 행정입법에 대한 절차적 통제로서 협상원칙에 관한 소고|RISS 상세보기

다국어 초록 (Multilingual Abstract)

Generally, legislative power of executive branches should be limited into the scope of the Congress’s deference. However, in the modern countries, the controversies reagrding the methods to control the administrative legislation is arrising because of the 1) twilight zone which is not clear whether the Congress has deferred their power or not, or 2) some specific areas where too broad deferential power has been empowered.
In USA, the Congress’s deference and the Court’s judicial review are main ways to control the contents of administrative legislation. However, to supplement the process, congress prior and procedual methods are suggested like in Korea. The outstanding method seems the Negotiated Rulemaking Act(“NRA”). It is a method which uses Alternative Dispute Resolution(“ADR”) in the process which is controlled by the Faciliator(like Mediator or Arbitrator). If the Faciliator submits their conclusion, the agencies can choose to adopt the resolution or not. It would be a significant process to secure the procedueal justice and transparancy.
Considering the Administrative Legislation is also one kind of collective decision making process, NRA would be helpful to make a efficient and compromising legislation. To adopt NPR, we need to have more general standards to determine which act should be obligated. There seems not agreed standards, but bargaining test would be one of considerations.

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