유럽헌법학회

The Article 40 of the Constitution declares the legislative power shall be vested in the Parliament, and the article 75 and 95 provide the constitutional grounds for the Administrative legislation, namely, the delegated legislation by the administrative branches. The administrative rule-making power is derived from the legislative authority of the Parliament. Under the constitutional government, which is established on the basis of people’s sovereignty and separation of powers, the administrative legislation should not deviate from its limits with regard to the Act of Parliament. However, many administrative legislation go beyond the limits or against the intent of delegation, so the way of controlling the administrative rule-making has been disputed, but there’s no effective solution so far. This article examines to what extent is constitutionally permissible the administrative legislation and what would be the limits of it with following arguments: ① Democratic legitimacy, ② Separation of powers, ③ Rule of law and ④Administrative state’s problem. Then, in the theoretical and comparative perspective, this article suggests following measures to control the deviated administrative legislation: ① substantive control by more concrete and clearer Parliamentary acts, ② Parliamentary control over the Administrative rule-making process, ③ Public participation in the Administrative rule-making process and finally ④ the Judicial control as a final step.