Administrative regulations to realize administrative purposes must be based on laws enacted by the National Assembly, but in situations involving high technology, the need for rapid response has led to an increasing use of administrative legislation enacted by the executive branch and local governments. Administrative legislation includes delegated orders, administrative rules, and ordinances, each with different enactment procedures and scope of application. For such administrative legislation to have democratic legitimacy, it needs a clear basis for delegation and procedural legitimacy.
Administrative regulations, where administrative entities such as the state and local governments restrict people’s rights or impose obligations on people in order to realize administrative purposes, must be based on laws enacted by the National Assembly. The enactment of such laws has a democratic legitimacy, and it is one of the basic principles of the rule of law that the National Assembly, as the representative body of the people, establishes regulations that directly affect the rights and obligations of the people. However, in recent years, administrative regulations have been increasingly enacted by administrative legislation, which are laws enacted not by the National Assembly but by administrative bodies such as the executive branch headed by the president or local governments. This is due to the increasing number of administrative regulations that are related to advanced technology, require immediate response to changing circumstances, or require different regulations to reflect individual circumstances, such as those related to drones. Administrative agencies are better suited to deal with these matters than parliament. The parliamentary legislative process is time-consuming and bureaucratic, making administrative legislation more favorable in areas that require a quick response.
Types of administrative legislation include delegated orders, administrative rules, and ordinances. According to the Constitution, the National Assembly can delegate legislation on specific matters to the executive branch when enacting laws on administrative regulation. Administrative legislation enacted in this way is called a delegated order. Delegated orders are divided into presidential, prime ministerial, and vice-prime ministerial decrees depending on who enacts them. Since they all apply to the people, they must go through procedures such as legislative notice and promulgation. Delegated orders can be justified because the legislature, the National Assembly, has entrusted some of its powers to the executive branch. Therefore, a blanket delegation that does not define the scope of the specific administrative regulation to be enacted by the delegation order in the underlying law violates the constitutional principle of separation of powers. The outline of the delegated administrative regulation should be predictable from the content of the law underlying the delegation. However, the more high-tech the administrative regulation, the broader the scope of what can be delegated by the law underlying the delegation. On the other hand, a delegation order may not be enacted beyond the scope of the delegation granted by the law, or expand or contract the meaning of the language used by the law underlying the delegation. If a delegated order is enacted in violation of these restrictions, it is invalid.
Administrative rules are administrative legislation that originally relate to the titles and procedures of the executive branch, such as notices and regulations. Because they do not directly apply to the general public, they can be enacted validly without being delegated by law and do not need to go through the same procedures as delegated orders. However, there are exceptions where administrative rules are enacted for matters of administrative regulation. If the delegated matter is so relevant to advanced technology that it is difficult to respond to it with a delegation order, the delegated matter may be enacted as a notice or a preliminary regulation if the law on which the delegation is based specifies only the subject of the administrative legislation and does not specify the type of administrative legislation. Unlike delegated orders, administrative rules in this case are enacted without legislative notice or promulgation.
Ordinances are administrative legislation enacted by local councils that reflect local specificities and apply to local matters. It is differentiated from delegated orders and administrative rules enacted by the executive branch in that the enacting body is the local council, which is an organ of the local government. Ordinances must also be based on a delegation of authority from a law to regulate administrative matters. They can also receive a blanket delegation from a law, but they cannot use different meanings of the words used in the law underlying the delegation. Ordinances are enacted through procedures such as legislative notice and promulgation.
As you can see, administrative legislation plays an important role in modern administrative states. In particular, with the development of advanced technology and the accelerating pace of social change, administrative legislation is becoming increasingly important in areas that require quick and flexible responses. However, for such administrative legislation to have democratic legitimacy, it must have a clear basis of delegation and procedural legitimacy. As regulations directly affect people’s rights and obligations, they should be enacted through a transparent and accountable process. This will enable administrative legislation to gain public trust and secure social legitimacy.
