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세계행정법(Global Administrative Law)의 적정절차에 관한 연구

DC Field Value Language
dc.contributor.advisor박정훈-
dc.contributor.author김대현-
dc.date.accessioned2017-07-19T03:35:34Z-
dc.date.available2017-07-19T03:35:34Z-
dc.date.issued2015-02-
dc.identifier.other000000026784-
dc.identifier.urihttps://hdl.handle.net/10371/128671-
dc.description학위논문 (석사)-- 서울대학교 대학원 : 법학과, 2015. 2. 박정훈.-
dc.description.abstract세계화의 흐름과 이에 따른 전통적 국가 기능의 변화는 다양한 초국가적 규제 및 협력체계를 필요로 하게 되었고, 이러한 환경 속에 이른바 세계행정법(Global Administrative Law)의 논의가 나타나게 되었다. 세계행정법 논의에 대한 비판적 견해가 있기는 하나, 세계적 규제분야에서 책임성을 증진하고 이해당사자들의 절차적 보장을 실현함으로써 세계행정이 힘의 논리에 의하여 좌우되는 것을 방지하고, 이해당사자의 권익을 보장할 수 있다는 측면에서 세계행정법 논의는 그 필요성을 인정할 수 있다. 독립적이고 통일적인 입법 및 사법기관의 부재 등으로 말미암아 세계행정법의 초기단계에서 적정절차(Due process)에 관한 논의는 그 주요한 위치를 차지하는데, 세계행정을 구성하는 세계기관, 국가, 사적당사자의 3주체는 참여와 투명성을 주요 원리로 하여 상호간에 절차적 보장을 향유한다. 적정절차의 개별내용으로는 정보공개, 의견청취, 이유제시, 불복절차 등 선진국가의 법제에서 보편적으로 받아들여지고 있는 절차가 논의의 대상이 되는데, 그 절차적 보장의 수준은 전반적으로 아직 미흡한 단계에 있다. 주목할 만한 것은 세계행정의 영역에서 적정절차의 원리가 작동하는 메커니즘 속에 개인, NGO, 회사 등 사적당사자들이 그 중심에서 절차적 권리를 요구하고 이를 관철함으로써 세계행정의 적정절차 수준을 제고하는데 크게 기여하고 있다는 것이다. 이와 같은 사적 당사자의 전면적 등장은 기존 국제법 영역에서 구체적으로 상정하지 않았던 것으로 이 점에 세계행정법의 존재의의가 있고, 향후 심도 있는 논의가 필요한 부분이기도 하다.-
dc.description.tableofcontents국문초록
연구의 목적 ················································································································· 1
연구의 범위 ················································································································· 2
제1장 세계행정법의 의의 ······················································································· 3
제1절 세계행정법의 배경 및 연혁 ······································································ 3
Ⅰ. 세계화 ········································································································ 3
Ⅱ. 국가 기능의 변화 ························································································ 4
Ⅲ. 세계행정법 논의의 출현 ············································································· 5
Ⅳ. 선행연구의 상황 ·························································································· 6
제2절 세계행정법의 개념 ······················································································ 8
Ⅰ. 일반적 정의 ·································································································· 8
Ⅱ. 세계행정의 의의 및 범위 ········································································ 8
Ⅲ. 비교개념 ····································································································· 10
1. 국제행정법 ································································································ 10
2. 국내행정법 ································································································ 10
제3절 세계행정법의 필요성 ·············································································· 12
Ⅰ. 일반론 ········································································································· 12
Ⅱ. 비판론 ········································································································· 13
Ⅲ. 검토 ············································································································· 14
제4절 세계행정법의 구조 ···················································································· 16
Ⅰ. 세계행정의 5가지 유형 ············································································· 16
iv
1. 국제기구에 의한 행정 ············································································· 16
2. 초국가적 네트워크에 의한 행정 ···························································· 16
3. 국내 규제자에 의한 행정(분산된 행정 내지 간접행정) ····················· 17
4. 정부-사인 혼합체에 의한 행정 ······························································ 18
5. 사적기구에 의한 행정 ············································································· 19
Ⅱ. 세계행정의 대상 ························································································ 20
Ⅲ. 세계행정법의 법원(Source) ······································································· 22
제2장 세계행정법의 적정절차에 관한 일반론 ··················································· 25
제1절 세계행정법에서의 적정절차의 의의 ······················································· 25
Ⅰ. 논의의 필요성 ···························································································· 25
Ⅱ. 적정절차 보장의 기능 ··············································································· 25
Ⅲ. 적정절차원리의 적용범위 ········································································· 27
Ⅳ. 미국과 EU의 적정절차 ············································································· 28
1. 개설 ··········································································································· 28
2. 미국의 행정절차법 ·················································································· 28
3. EU의 행정절차법 ····················································································· 31
4. 소결 ··········································································································· 33
제2절 세계행정법에서의 적정절차의 주요원리 및 내용 ································· 34
Ⅰ. 개설 ············································································································· 34
Ⅱ. 적정절차의 주요원리 ················································································· 34
1. 참여 ··········································································································· 34
2. 투명성 ······································································································· 36
Ⅲ. 적정절차의 주요내용 ················································································· 37
1. 정보공개절차 ···························································································· 37
2. 의견청취절차 ···························································································· 38
3. 이유제시절차 ···························································································· 39
v
4. 불복절차 ··································································································· 40
제3절 세계행정법에서의 적정절차 향유의 주체 ·············································· 41
Ⅰ. 개설 - 3단 구조 ························································································ 41
Ⅱ. 사적 당사자 ································································································ 42
1. 사적 당사자의 국가에 대한 절차법적 보장 ········································· 42
2. 사적 당사자의 국제기구에 대한 절차법적 보장 ································· 43
Ⅲ. 국가 ············································································································· 44
1. 국가의 국제기구에 대한 절차법적 보장 ·············································· 44
2. 국가의 다른 국가에 대한 절차법적 보장 ············································ 44
Ⅳ. 세계기관 ····································································································· 45
Ⅴ. 소결- 적정절차의 감독자로서의 세계행정 ············································· 46
제3장 세계행정법의 적정절차의 실제 ································································· 47
제1절 개설 ············································································································ 47
제2절 대표적 사례 ······························································································· 48
Ⅰ. 유럽사법재판소(ECJ)의 이른바 Kadi 사례 ·········································· 48
1. 사안 ··········································································································· 48
2. 평가 ··········································································································· 51
Ⅱ. 오르후스 협약(Aarhus Convention)의 사례 ········································· 53
1. 사안 ··········································································································· 53
2. 평가 ··········································································································· 54
제3절 정보공개절차 - 세계은행의 투명성 개혁 사례 ····································· 57
1. 사안 ··········································································································· 57
2. 평가 ··········································································································· 59
제4절 의견청취절차 - 인도 뭄바이 Urban Transport Project 사례 ··············· 60
1. 사안 ··········································································································· 60
2. 평가 ··········································································································· 62
vi
제5절 이유제시절차 - 미국 Definitive Safeguard Measures on Imports
of Certain Steel Product 사례 ····································· 63
1. 사안 ··········································································································· 63
2. 평가 ··········································································································· 64
제6절 불복절차 ····································································································· 65
Ⅰ. 독립적인 심사기관이 존재하는 경우 - 스포츠중재재판소(CAS) 사례 ·· 65
1. 사안 ··········································································································· 65
2. 평가 ··········································································································· 66
Ⅱ. 독립적인 심사기관이 존재하지 않는 경우 - UN 고등난민판무관의
난민지위 결정 사례 ··········· 67
1. 사안 ··········································································································· 67
2. 평가 ··········································································································· 69
제7절 소결 ············································································································ 69
제4장 요약 및 결어 ································································································· 72
제1절 요약 ············································································································ 72
제2절 결어 ············································································································ 73
참고문헌 ····················································································································· 75
Abstract ······················································································································78
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dc.formatapplication/pdf-
dc.format.extent792954 bytes-
dc.format.mediumapplication/pdf-
dc.language.isoko-
dc.publisher서울대학교 대학원-
dc.subject세계행정법-
dc.subject적정절차-
dc.subject참여-
dc.subject투명성-
dc.subject사적당사자-
dc.subject.ddc340-
dc.title세계행정법(Global Administrative Law)의 적정절차에 관한 연구-
dc.typeThesis-
dc.description.degreeMaster-
dc.citation.pagesvi, 79-
dc.contributor.affiliation법과대학 법학과-
dc.date.awarded2015-02-
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