Abstract ▼

Ⅰ. Backgrounds and Purposes
▶ Analyze the role and function of administrative fines as a means of administrative enforcement and the < Act on the Regulation of Violations of Public Order > and administrative fine-related provisions in other laws and regulation affording the legal basis for their

Ⅰ. Backgrounds and Purposes
▶ Analyze the role and function of administrative fines as a means of administrative enforcement and the < Act on the Regulation of Violations of Public Order > and administrative fine-related provisions in other laws and regulation affording the legal basis for their imposition.

▶ Verify the status of the < Act on the Regulation of Violations of Public Order > within the Korean legal system, as a general law on administrative fines, at the 10th anniversary of its enactment, and the function of the administrative fine system as a system and an institution.

▶ Examine how administrative fine provisions in various laws and statutes regulate related practices, both on their own and together with the < Act on the Regulation of Violations of Public Order >, and suggest ways to improve the administrative fine system as a whole, for greater rationality and efficiency, through the analysis of legislative models.

Ⅱ. Major Content
▶ General Discussion of the Administrative Fine System
○ Concept: An administrative fine is a financial penalty imposed by a government or local government agency for certain violations of public order.

○ Similar concepts: An administrative fine is distinct from minor fines, restitutive fine, punitive fine, and enforcement fine.

○ Characteristics: An administrative fine is an administrative order penalty, used as a means to indirectly enforce the performance of public law obligations, which is in that sense distinct from an administrative criminal penalty.

○ Legal basis: General rules on the imposition and collection of administrative fines are laid down in the < Act on the Regulation of Violations of Public Order >, while details such as entities authorized to impose administrative fines, criteria of their imposition and amounts thereof are stipulated in various different laws specific to given administrative fields.

○ Limitations of the < Act on the Regulation of Violations of Public Order >
- Limitations as a system of rules: Close in nature to a procedural law for the assessment and collection of administrative fines, while being also similar to the general provisions of the < Criminal Act >.

- Limitations at the level of contents: What constitutes a violation of public order, as well as the concept of administrative fine, is not sufficiently clearly established;

The inconsistency of criteria for the imposition of administrative fines; The imposition and collection of civil penalties lack enforceability; No real mechanism is in place to protect the rights and interests of citizens during administrative fine trials, and collection procedures for fines in arrears risk infringing upon the basic and fundamental principles of the rule of law.

○ Proposed improvements: Clearly establish the legal status of administrative fines;
Revise rules in a manner to make them distinct from the general provision of the < Criminal Act >; Redefine the basic concepts including “administrative fine,” “violation of public order” and “party”; Group criteria for the imposition of administrative fines into coherent categories; Establish the principles of numeral system; Review the method for the calculation of administrative fines and set a maximum amount of imposition; Establish rules and criteria for the increase and reduction of fines; Protect defendants’ right to defense during trials; Clearly stipulate the principle of proportionality with regard to the collection procedure for fines in arrears; Establish the “Administrative Fine Deliberation Committee”(tentative name) to enhance the system and train “administrative fine collection officers” to improve the collection rate, etc.

▶ Administrative Fine Systems in Major Countries
○ Examine administrative fine systems used in the U.S., Germany, U.K., France, Japan and China as a mechanism for punishing violations of public order to derive implications.

○ Research into legislative examples related to the administrative fine system (administrative order penalty system) from the U.S., Germany, U.K., France, Japan and China to derive implications.

○ U.S.: The civil money penalty (CMP) system is a system that covers both financial penalties known in Korea as administrative fines and restitutive fines. Civil money penalties are imposed at the federal level, as well as at the state level, and are provided for in various laws including the < Federal Aviation Act >.

○ Germany: Monetary sanctions are also used in Germany, as a means of administrative enforcement. The < Administrative Offences Act (Gesetz über Ordnungswidrigkeiten, OWiG) > is the general law regulating financial sanctions. However, in Germany, administrative order penalties (Geldbuße) are imposed and collected following the same procedure as administrative criminal penalties (Geldstrafe); which makes the German system distinct from the Korean administrative fine system.

○ U. K.: In the U. K., there is no general law regulating administrative fines. However, administrative penalties are widely used in various administrative fields, as provided for in laws specific to each field. A coherent system for punishing violations of public order is in place, with clearly established types of offenses subject to administrative penalties.

○ France: In France, both criminal fines and administrative fines (amendes administratives) are known as “amendes,” although they are distinguished according to their basis of imposition. Under individual laws, punitive fines, administrative fines and other similar fines are all considered a form of sanctions patrimoniales or sanctions pécuniaires, used as a means of administrative enforcement.

○ Japan: Karyo, the monetary enforcement means used in Japan, is distinct from punitive fines under criminal law. No general law exists on administrative fines, which are provided for by individual laws, including the < Non-Contentious Case Procedures Act > and the < Local Autonomy Act >.

○ China: Administrative fines are regulated by the < Administrative Punishment Law of the People’s Republic of China >, a general law providing for administrative sanctions and punishments. In the Chinese legal system, there is no clear boundary between criminal punishments and administrative sanctions.

○ Administrative fines and other means used for administrative enforcement vary depending on the country, due to their specific legislative situation.

Notwithstanding, administrative fines are widely used in many administrative fields across the world. Administrative fines may be regulated by a general law or individual laws. No matter what their type, these laws usually stipulate the legal basis for the imposition of administrative fines, entities authorized to impose them, criteria for imposition, method for calculating their amounts, procedures for their assessment and collection, procedures for contesting a fine and procedures for forcible collection of fines.

▶ Suggested Improvements for the Legislative Model for Administrative Fines
○ Identify ways to overhaul the current laws (the laws and the Appendix Tables in their associated regulations) in a manner to improve the legislative approach in administrative fine-related provisions and the content thereof. Achieve greater compliance with the principle of clarity in legal provisions so as to guarantee the predictability of these laws for citizens and make their application more convenient for officials in charge to ultimately enhance the rationality and efficiency of the overall administrative fine system.

○ Review and analysis of 272 laws and regulations on administrative fines, proposed and implemented by five cabinet ministries, which are currently in effect.

- 93 laws and regulations including the < Restitution of Development Gains Act > by the Ministry of Land, Infrastructure and Transport, and 41 laws and regulations including the < Personal Information Protection Act > by the Ministry of Interior and Safety, 49 laws and regulations including the < Act on the Management and Use of Livestock Excreta > by the Ministry of Environment, 58 laws and regulations including the < Infectious Disease Prevention and Control Act > by the Ministry of Health and Welfare, and 31 laws and regulations including the < Act on the Promotion of the Game Industry > by the Ministry of Culture, Sports and Tourism.

Ⅲ. Expected Effects
▶ The theoretical discussion of administrative fines with regard to both the concept and function can help underscore their unique role as an administrative enforcement means, beyond being simple complements to administrative criminal penalties, which can, in turn, contribute to an increased effectiveness of the administrative fine system.

▶ Analyzing legislative approaches used in the < Act on the Regulation of Violations of Public Order > and individual laws that provide legal basis for the imposition and collection of administrative fines and designing a new legislative model by taking into consideration the input of those practically involved in their imposition and collection are likely to contribute to a more rational and efficient operation of the administrative fine system.

(출처 : Abstract 9p)

목차 Contents

• 표지 ... 1
• 요약문 ... 5
• Abstract ... 9
• 목차 ... 17
• 제1장 서 론 ... 21
• 제1절 연구의 필요성 및 목적 ... 23
• 제2절 선행 연구와의 차별성 ... 25
• 제3절 연구의 범위 및 방법 ... 28
• 제2장 과태료 제도 일반론 ... 31
• 제1절 과태료의 의의 ... 33
• Ⅰ. 개 념 ... 33
• Ⅱ. 유사 개념와의 구별 ... 36
• Ⅲ. 유 형 ... 41
• Ⅳ. 성 격 ... 43
• 제2절 과태료의 法源 ... 52
• Ⅰ. 개 설 ... 52
• Ⅱ. 질서위반행위규제법 ... 53
• Ⅲ. 개별 법령 ... 74
• Ⅳ. 질서위반행위규제법의 한계 및 개선방향 ... 75
• 제3장 주요 외국의 과태료 제도 ... 91
• 제1절 개 설 ... 93
• 제2절 미 국 ... 94
• Ⅰ. 행정상 금전적 제재수단의 입법 동향 ... 94
• Ⅱ. 민사금전벌의 부과․징수 ... 99
• Ⅲ. 소 결 ... 101
• 제3절 독 일 ... 102
• Ⅰ. 행정상 금전적 제재수단의 입법 동향 ... 102
• Ⅱ. 과태료의 부과․징수 ... 105
• Ⅲ. 소 결 ... 110
• 제4절 영 국 ... 111
• Ⅰ. 행정상 금전적 제재수단의 입법 동향 ... 111
• Ⅱ. 과태료의 부과․징수 ... 113
• Ⅲ. 소 결 ... 117
• 제5절 프랑스 ... 118
• Ⅰ. 행정상 금전적 제재수단의 입법 동향 ... 118
• Ⅱ. 행정상 금전적 제재의 부과․징수 ... 119
• Ⅲ. 소 결 ... 123
• 제6절 일 본 ... 124
• Ⅰ. 행정상 금전적 제재수단의 입법 동향 ... 124
• Ⅱ. 과료의 부과․징수 ... 126
• Ⅲ. 소 결 ... 130
• 제7절 중 국 ... 131
• Ⅰ. 행정상 금전적 제재수단의 입법 동향 ... 131
• Ⅱ. 행정처벌의 부과․징수 ... 134
• Ⅲ. 소 결 ... 139
• 제8절 평가 및 시사점 ... 139
• Ⅰ. 과태료 금액 산정과 관련하여 ... 140
• Ⅱ. 과태료 부과 절차와 관련하여 ... 141
• Ⅲ. 과태료 징수율 제고와 관련하여 ... 142
• 제4장 과태료 제도의 입법체계 정비방안 ... 145
• 제1절 입법체계 정비의 필요성과 정비방향 ... 147
• Ⅰ. 정비필요성의 배경 ... 147
• Ⅱ. 정비 방향 ... 148
• 제2절 현행 과태료 관련 법령상 명확성원칙의 정립 ... 151
• Ⅰ. 법률 상 명확성의 원칙 ... 151
• Ⅱ. 행정입법 시 명확성 원칙의 적용 ... 153
• 제3절 현행 과태료 관련 법령상 입법현황 검토 ... 156
• Ⅰ. 소관부처별 법령 분석 틀 마련 ... 156
• Ⅱ. 소관부처별 법령 분석 현황 ... 164
• Ⅲ. 소관 부처별 법령 분석 현황 종합 ... 304
• 제4절 과태료 제도 운영현황을 위한 설문조사 ... 326
• Ⅰ. 개 관 ... 326
• Ⅱ. 과태료 입법체계 정비관련 설문주요내용 ... 336
• 제5절 정비방안 도출 ... 344
• Ⅰ. 법률상 명확성원칙 적용목적에 충실한 규정체계 마련 ... 344
• Ⅱ. 행정입법에 있어 “구체적으로 범위설정에 충실한” 규정체계 마련 ... 346
• 제5장 결론 : 과태료 제도의 합리적 정비를 위한 개선방안 ... 355
• Ⅰ. 과태료의 법적 지위 확립 ... 357
• Ⅱ. ｢질서위반행위규제법｣의 개선방향 ... 358
• Ⅲ. 과태료 제도의 입법체계 정비방안 ... 360
• 참고문헌 ... 363
• 부록 ... 375
• 끝페이지 ... 390