Analysis and Improvement of Legal system related to the agency of administrative affairs
Authors:   Korean Administrative Law Association, Park Garim 
Published: April 2024

The agency system of administrative affairs has many provisions under the current law, but there is no unified definition provision. Therefore, in order to prevent confusion in law enforcement and to improve the efficiency of administration through the agency of administrative affairs, a legal reorganization is required. This study attempted to systematize the legal principles of the agency system through comparison with adjacent concepts and analysis of related precedents, to identify a general principles through investigation and categorizing of the current law that codified the agency. Chapter 2 analyzes legal theories and precedents related to the agency system. In the case of an agency, it is distinguished from delegation or consignment to which authority and responsibility are transferred in that the agency is given virtually independent administrative authority, but the authority is not legally transferred, and it is also different from an administrative assistant who technically executes administrative affairs independently according to the direction of the administrative agency. The agency system is characterized by the reservation of its authority and responsibility because all legal effects are bound to the agency and the agency is not specified as an agent. Regarding agency, the Supreme Court cases judge the term agency based on the meaning of the actual use of the term agency, such as denying or affirming the effect of disposition in the name of the agent by grasping the legal nature of the agency in detail. In the case of the Constitutional Court, there are many judgments on whether the agency system related to freedom of occupation is unconstitutional. In Chapter 3, provisions related to agency are categorized based on the results of an investigation of the current laws. It is classified into a type in which the state or local government, which is the agency to act, entrusts administrative affairs to the private sector based on laws and regulations, a form in which an administrative agency entrusts administrative affairs to another administrative agency, and a case in which the administrative agency entrusts the authority and duties in the event of an vacancy of a job performer. Examining based on these types of work, there are limitations that it is difficult to find the general principles of the agency system that apply to all the provisions under the current law that stipulate agency. In addition, there are many articles that stipulate ‘entrustment or agency’, so it seems desirable to reorganize the legal system in a parallel way that legalizes issues specific to administrative agency and reorganizes agency articles used in the same sense as entrustment or delegation. If a plan to improve the agency system is presented based on these implications, it should prioritize creating a general rule on the agency's general affairs, and making preliminary guidelines on the permission, basis, reservation of authority and responsibility of the agency. It needs to improve legal consistency by preparing regulatory provisions for the agency, making it a general provision that the administrative agency has the authority to direct and supervise administrative affairs. It is necessary to reserve the authority to take measures such as ordering or correcting the agency's handling of administrative affairs, and to codify where external responsibility may arise to third parties due to the suspension or cancellation of the agency. At the same time, it is necessary to amend the provisions under the individual laws that stipulate agency into entrustment, delegation, and acting on duty to meet specific legal characteristics.