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초록· 키워드
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Perhaps no other legal term is so ambiguous as ?due process of law′ in American public law. This institute is deeply rooted in American legal history. Although it originated from English legal tradition, the meaning and importance of ?due process of law′ in the U.S.A. today is quite different from that of its homeland. We can find the procedural protection clause in the articles 5 and 14 of Federal Constitution. By these clauses citizens are protected from the illegal actions of agencies not only for substantial grounds, but also for procedural reasons.
The main object of this thesis is to make clear the current situation of protection of procedural rights under Administrative Procedure Act, which was enacted in 1946. We might say with confidence that American administrative law has been greatly developed owing to this statute. But it is not so easy to make out every practical aspects of the act. As usual, the words in statutes are abstract and general. The concrete meaning of legal terms is shaped through the decisions of courts. The U.S. Supreme Court has made many important decisions regarding due process. In this article, I tried to explain scope and limits of procedural rights expressed through the decisions of courts.
Procedural rights consist of due process by the constitution with APA and (mere) procedural rights by other statutes. When some acts provide procedure for agency action, they are expected to be observed by governments. But many people insist they have injury in fact because an agency did not follow the process of law. However the legal consequence of non-observance of procedural clauses is often argued. In Lujan v. Defenders of Wild Life(504 U.S. 555), the court stated that "The person who has been accorded a procedural right to protect his concrete interest can assert that right without meeting all the normal standards for redressability and immediacy." With this case the meaning and importance of procedural clause is still waiting to be materialized.
It has passed several years since Korean Administrative Procedure Act became effective. An act cannot change the whole atmosphere of administrative procedure. Many officials seem to regard administrative process as accessaries of their decisions. More efforts should be made to promote the process of law. I think administrative procedure will enhance substantial fairness, too. In judicial review, more attention should be paid on the administrative procedural aspects. By making administrative order in due process, administrative effectiveness can be achieved along with the perfect protection of citizens′ rights.
The main object of this thesis is to make clear the current situation of protection of procedural rights under Administrative Procedure Act, which was enacted in 1946. We might say with confidence that American administrative law has been greatly developed owing to this statute. But it is not so easy to make out every practical aspects of the act. As usual, the words in statutes are abstract and general. The concrete meaning of legal terms is shaped through the decisions of courts. The U.S. Supreme Court has made many important decisions regarding due process. In this article, I tried to explain scope and limits of procedural rights expressed through the decisions of courts.
Procedural rights consist of due process by the constitution with APA and (mere) procedural rights by other statutes. When some acts provide procedure for agency action, they are expected to be observed by governments. But many people insist they have injury in fact because an agency did not follow the process of law. However the legal consequence of non-observance of procedural clauses is often argued. In Lujan v. Defenders of Wild Life(504 U.S. 555), the court stated that "The person who has been accorded a procedural right to protect his concrete interest can assert that right without meeting all the normal standards for redressability and immediacy." With this case the meaning and importance of procedural clause is still waiting to be materialized.
It has passed several years since Korean Administrative Procedure Act became effective. An act cannot change the whole atmosphere of administrative procedure. Many officials seem to regard administrative process as accessaries of their decisions. More efforts should be made to promote the process of law. I think administrative procedure will enhance substantial fairness, too. In judicial review, more attention should be paid on the administrative procedural aspects. By making administrative order in due process, administrative effectiveness can be achieved along with the perfect protection of citizens′ rights.
목차
Ⅰ. 서론
Ⅱ. 적법절차(Due Process of Law)와 행정절차
Ⅲ. 행정절차와 적법절차 보장
Ⅳ. 행정통제에 관한 일반법으로서의 행정절차법
Ⅴ. 절차적 침해의 법적효과
Ⅵ. 결론
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