Administrative Procedures
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  • What does ‘administrative procedures’, as stated in the Administrative Procedure Act, refer to?
  • Administrative procedures are certain steps that administrative agencies should take to perform their administrative duties. This includes external steps that an administrative agency should take, in advance, with the other party or other interested parties, when issuing a disposition, report, administrative legislation notice, or an administrative direction.
  • Necessity and Time of Introduction of Administrative Procedures
  • Administrative procedures are necessary to accomplish administrative purposes smoothly and to protect citizen rights by ensuring administrative fairness, transparency, and trustworthiness by allowing citizens to participate in the administrative process. After long legislative efforts, .the Administrative Procedure Act was established on December 31, 1996 (Act No. 5241), which was then implemented in January 1, 1998.
  • Persons Subject to the Administrative Procedure Act
  • The persons subject to the Administrative Procedure Act are administrative agencies and concerned parties.
  • - Administrative agencies: the national authorities that issue administrative dispositions or entities or private persons to whom administrative rights have been delegated or committed.
    - Party concerned: refers to any party who directly becomes the other party by disposition of an administrative agency or ‘any interested party’ whom an administrative agency has led to participate in administrative procedures via order or upon request.
  • Application of the Administrative Procedure Act
  • The Administrative Procedure Act applies in cases of administrative dispositions, notifications, administrative legislation notices, administrative notices, or administrative directions.
    ※ If there is a special provision subject to other laws, the other laws should apply preferentially.
    • Constituent Parts of the Disposition Procedure
    • The basic constituents for the disposition procedure consist of the public announcement of the processing time and disposition standards, prior notices, opinion hearings, and presenting reasons.
      • 1. Public Announcement of Processing Times and Disposition Standards
      • An administrative agency should specify in advance and publicly announce the processing times of dispositions by type. They should also specify and publicly announce in advance the required disposition standards by type as concretely as possible, considering the features of the dispositions.
      • 2. Prior Notices
      • Where an administrative agency imposes obligations on a party concerned, or issues dispositions that infringe on the rights or interests of a concerned party (disadvantageous dispositions), they should be given prior notice of the reason and the legal .basis. The concerned party must be given the opportunity to collect evidence and prepare a response (e.g., where a prior notice is given before the dispositions of discontinuance or cancellation of food service sales).
      • 3. Opinion Hearings
      • Where an administrative agency imposes obligations on a concerned party or issues dispositions that infringe on the rights or interests of a concerned party (disadvantageous dispositions), the opinions of the parties concerned should be heard after prior notice. Such hearings involve the submission of opinions, hearings, and public hearings.
      • [Submission of Opinions]
      • The submission of opinions should be conducted in cases of disadvantageous dispositions in the absence of hearings or public hearings. Opinions may be submitted in writing, orally, or by using information communication networks.
      • [Hearings]
      • Hearings should be conducted where individual laws allow for hearings and an administrative agency finds it necessary. Hearings should be conducted mainly in cases of the cancellation or withdrawal of permits, authorizations, or licenses. Following a hearing, an administrative agency should sufficiently review the records of the hearing and other relevant documents. Should it find substantial reason, an administrative agency should actively reflect such the findings of a hearing in the issuance of a disposition.
      • [Public Hearings]
      • It is necessary to collect professional opinions and the opinion of the general public through open discussions. Public hearings are conducted, where the relevant laws allow a public hearing to be held, when an administrative agency issues dispositions or where an administrative agency finds it necessary to collect opinions, including the introduction of various policies or systems.
      • 4. Presenting Reasons
      • When issuing administrative dispositions, an administrative agency should give a written notice to the other party on the basis and reasons for the dispositions. Notice regarding the appeals procedure must also be given, in anticipation of any objections to the dispositions.
    • Administrative Legislation Notice
    • By giving to citizens, in advance of legislation, the content of the statutory (regulatory) proposals directly related to their everyday lives, a legislation notice ensures the efficiency of the statues (regulations) and promotes the establishment of policies by extending citizen participation in legislation and securing the democratization of legislation.
    • - Subject matter for legislative notice: for making, amending, or abrogating statutes, local self-government laws.
      - Method of notice: the main content or text of a legislative proposal is revealed through official gazettes, official reports, the Internet, newspapers, broadcasting.
      - Period of notice: more than twenty (20) days, unless circumstances dictate otherwise.
    • Administrative Notice
    • By giving to citizens, in advance of implementation, a notice of the policies, systems, or plans closely related to their lives, the administrative notice system is to provide sufficient time to allow citizens to prepare. Citizen opinion should also be collected and reflected in the policies.
    • - Subject matter for administrative notice: for policies, systems, or plants, with respect to those matters that significantly impact the lives of citizens, those matters that conflict with the interests of many citizens, cause inconvenience or are a burden. Any matter that requires the collection of citizen opinion is also subject to administrative notice.
      - Method/Period of notice: should be the same as legislation method
    • Administrative Direction
    • Administrative direction refers to any unauthorized request by an administrative agency for voluntary cooperation.
    • - Subject matter for administrative directions: within the scope of the jurisdiction of an administrative agency.
      - Method of administrative directions: to seek the voluntary cooperation of another party by way of guidance, recommendation, advice, request, encouragement.
    • Reporting System
    • Reporting is the act of providing a relevant administrative agency, whether in writing or orally, with certain legal facts or the existence or absence of legal relations.
    • - Subject matter: for making, amending, or abrogating statutes, local self-government laws.
      - Method of operation: when a reporting application has been submitted to an administrative agency, the duty of reporting has been completed. Where there is an error in the entries or where it does not conform to the prescribed laws, an administrative agency should request a supplementation thereof, without delay. To this end, a substantial period of time should be designated and, should no supplementation be made within the supplementation period, the agency should return the application and specify the reason.
  • Exceptions to the Application of the Administrative Procedure Act
  • Where other laws have special provisions;
    Matters conducted by an institution whose constitutional independence is secured;
    Matters that require special disposition procedures related to criminal execution;
    Matters of national security, including those matters that may seriously damage the significant interests of the country were they to pass through administrative procedures; or matters on appeals procedures, including administrative judgments.
  • What if the Administrative Procedure Act is violated?
  • If the correct procedure for an administrative process is not followed, an administrative disposition may be invalidated or cancelled.