The purpose of this thesis is to find some of meaningful implications for the congressional control of administrative legislation in Korea through the study of the U.S. case from comparative law perspective. This study can be divided into two tasks. t...
The purpose of this thesis is to find some of meaningful implications for the congressional control of administrative legislation in Korea through the study of the U.S. case from comparative law perspective. This study can be divided into two tasks. the one is about whether or not the National Assembly of the Republic of Korea can introduce so-called “congressional veto”(legislative veto). The other is to compare the U.S. congressional review of agency rulemaking codified at 5 U.S.C. 801-808, popularly known as the Congressional Review Act(CRA) with the Korea National Assembly's review of administrative legislation codified at Korea National Assembly Act Article 98-2. The results of this study are as follows;
1. First of all, this study, on the basis of functionalism in separation of powers principle in the constitutional law, presents the reasons for arguments to support constitutionality of congressional veto such as "consent power reservation" as below:
(1) we cannot accept as a matter of course that congressional veto in Korea will be also unconstitutional because congressional veto was declared to be unconstitutional by the Supreme Court in the U.S. which is under the same presidential system as Korea. That's because constitutional law and constitutional reality is definitely different between two countries. many of cabinet system's elements has been incoporated into Korean constitutional law. In light of political reality, majority group is cohesively united with the Executive including the President.
(2) Congressional veto such as consent power reservation does not violates Article 75 and Article 95 of Korea Constitution. Those are not related to the separation of powers on the basis of check and balance principle. In this regard, those are different from Article 53-3, the presidential veto clause. Those are only legal basis on which the Executive can make administrative legislation under the delegation of legislative authority. Therefore, the Executive cannot assert that administrative legislation power of Article 75 and Article 95 is the exclusive and inherent power of the Executive against Article 40, legislative power.
(3) Congressional veto such as consent power reservation of administrative legislation does not encroach Article 66-4, the executive power. Administrative legislation is just like a lawmaking that the Executive makes. This has legislative and administrative character. Especially, a delegated order related to the important national policy decision is not fall the core zone of administration, but fall the core zone of legislation. At most, such a congressional veto invades only a twilight zone of the Executive. The Legislative intervention after delegation can be justified constitutionally as long as it acts within the scope of the important national policy decision. After delegation, the legislative action itself is not changed but only actor is changed from the Legislative to the Executive. According to the functionalism, the real concern is whether or not the questioning branch's power breaks the balance of powers among branches. Congressional veto such as consent power reservation of agency rules does not serve concentration of powers but, serve to prevent the excessive concentration of powers to the Executive. Delegation of legislative power does not mean the complete delegation. It does mean uncompleted delegation which can be collected any time if the Congress need to do so. Thus, the Congress can set the procedural control mechanism just like a congressional veto with the substantive delegation clause. Congressional veto is not the "new legislation", but just the "control power" or "checking power". Congressional veto, can be seen, as a control power, in the so called "reverse legislation" which is different from normal legislative process and means that the President suggests the bill and the Congress can veto it. Congressional veto performs the same role and function in the modern administrative state as the presidential veto do for over two hundreds of years in the U.S. Unfortunately, framers of the U.S. Constitution could not anticipate this kind of nation that appears distinct features of the administration superiority among three branches. Congressional veto as a congressional direct control power of the administrative legislation is an implied and inherent power which resulted from Article 1 in the U.S. Constitution and Article 40 in the Korea Constitution. Therefore, this control power can be exercised without any condition if it is two house veto. Congressional veto is a conditioned power and shared legislative power with the Executive including the president. In Korea, congressional veto can have a binding effect on outside without president signature if it passes in the Assembly plenary.
(4) Congressional veto such as consent power reservation of administrative rules should be exercised within the justifiable scope and abide by its limit. From the point of view of separation of powers principle under the presidential system, administrative legislation is clearly an exception and also congressional veto after delegation is an exception. Exception should not overwhelm the principle. Possible application criteria of congressional veto, in which the Congress intervention can be justified constitutionally, is as below:
First, the Congress intervention in the administrative legislation should be limited to the matter of the important policy decision.
Second, the Congress intervention should be limited to the matter related to the case that the Congress want to provide directly in the statutes but the Congress cannot avoid delegation because of special character in the regulated.
Third, the Congress intervention should be limited to the matter of the case that the congress cannot provide details and bounds even though the Congress really want to do so. its intervention can be justified in the case of that broad and vague delegation is inevitable.
Fourth, the Congress intervention should be limited to the case of that other control methods such as report and wait, consultation etc. is not available and proper for attainment of the given purpose.
From now on, the Korea National Assembly, through empirical analysis, needs to endeavor to find out the possible field and affairs of important national policy which can be applied to criteria of congressional veto and to present desirable models of congressional veto. Historically, individual control mechanism of administrative legislation established in the enabling statute clause used to be prevail over the comprehensive and general congressional veto. The U.S. Congress control mechanism of agency rules which is newly established in 1996 can be said too ambitious because it adopted the comprehensive and general congressional veto system in spite of casting doubts of the theoretical and empirical studies about congressional behaviors and effectiveness of legislative control.
Next, this thesis is conducting the comparative analysis of the newly established U.S. congressional review of agency rulemaking mechanism, generally called as the Congressional Review Act(CRA) with the Korea review mechanism of administrative legislation on the Korea National Assembly Act Article 98-2.
CRA requires that all agencies promulgating a covered rule must submit a report to each House of Congress and to the Comptroller General(the chief of Government Accountability Office: GAO). GAO must prepare a report on the major rules for each jurisdictional committee within 15 calendar days of the agency's submission. GAO report should include an assessment of the agency's compliance with the procedural steps including various statutory and presidential executive order's requirements. Major rules are subject to 60 calendar days' waiting period. If a joint resolution of disapproval is enacted with presidential signature, the rule is deemed not to have had effect at any time. CRA reflects bicameralism and presidential presentment clause in majority's reasoning of Chadha decision so that becomes free from any of the challenge of constitutionality. Also its application scope is enlarged to the non-legislative rules. However, this new control mechanism has not been frequently used because of its exercising requirement, bicameralism and presidential presentment. Actually, The U.S. current control mechanism functions similarly to "report and waiting".
The Korea review mechanism of administrative legislation on the Korea National Assembly Act Article 98-2 has also general and comprehensive scope of application which is very similar to that of the U.S. But, there are many differences between two countries' control mechanism of administrative legislation. In Korea, agencies' rules are submitted after taking effect(with exception of presidential decree). Its control mechanism does not have "waiting period" and affect taking effect. This kind of control mechanism is, strictly speaking, not the direct control by the Congress. The Korea review mechanism can be identified as an ex-post agency rules' correction procedure on the precondition of agency's voluntary cooperation and acception. This control does not have compulsory binding effect but has some of merits as follows: lightening the burden of the Executive and the Legislative, improving of mutual communication and understanding between counterparts, providing national assembly's members and staffs with opportunity of learning and self reflection for good legislation. In the short term, the Korea National Assembly needs to seek sufficient utilization and stable development of the current control system rather than its dramatic change. In the long term, advanced control methods such as prior submission of administrative legislation, prior report and waiting period need to make them be useful in our system. However, to introduce disapproving procedure of taking effect in the current comprehensive control system is not appropriate in light of congressional veto's exceptional character. Finally, this paper maintains some of institutional and operational improvements such as the establishment of a screening mechanism, strengthening of policy review, incorporating "bulletins and etc." supplementing to statutes into controlling target, creating a synergy effect by linking the control of administrative legislation with the review of enabling statutes' delegating clauses.