立法過程의 改善方案에 관한 硏究

Abstract

Modern democratic nations select the principle of the respective independence of the legislature, the executive and the judicature in order to secure freedom and rights of the people and prevent evil influence caused by the concentration of power. As the executive power is being expanded as much as the administrative legislature has been substituted for the legislative power of the national assembly because of demands of the Social welfare nation and relative superiority of specificity, a typical meaning of the power division is deteriorated. However, the basic intention of the power division to protect the freedom and rights of the people from arbitrary execution of the executive is the last stronghold of the representative democracy. The legislative right based on the power division indicates that the basic policy of the nation, in particular, the policy that influences on freedom and rights of the people should be decided through a democratic procedure by the national assembly, a representative organization of the people. The meaning and function of the legislature within constitutional order are directly involved with the duty of the legislature in democratic order and of order of social and constitutional states. Here, the legislature is designed to decide basic matters of community societies based on democratic and procedural justice, promote reasonableness and stability of the decision and secure the freedom of the people. In consideration of the all the things above, the most important thing to be considered is that the process to organize the legislature should be democratic and resonable. That is, the executive should adjust and reflect polycentric interests and intentions of the people for reinforcement of the legislature and encouragement of democratic control, consider specific technology and efficiency demanded by modern active states and have leadership and responsibility to incorporate interests and intentions of the people through the national assembly. However, the legislature under the structures of democratic states usually needs very complex procedures corresponding to political and social situations. In particular, as the purposes of today's legislature are politically, economically and socially complex and diversified, and the process is naturally flexible, its organized planning is very difficult. The whole process of the legislature should be governed under the legally organized organizations, and preparation of a theoretical base to overview the every stage of the legislature is very useful in actual legislature, and contributes to improvement of the legislature according to economic and social needs, and quality of the law. The evaluation of the legislature execution is considered at the same time in two aspects: That is, actual aspect and procedural aspect; whether the corresponding laws are contradictory to the constitution and relevant law, valid and effective, and whether the legislative process abstract policy is embodied into the written law is democratic and just. In particular, in the latter aspect, that democratic and efficient progress of the legislative process is very important in that the legislative system deals with the gap between reality and the legislature properly and productively, and democracy of procedure works for justification of actual contents of the legislature, which improves possibility of acceptance of the law by the people. For today's democratic states, the legislative power is executed by the parliament. The execution of the legislative power by the Parliament is embodied and realized by the legislative process. The Parliament democratically elected by the people transforms the people's intention into legislature through legislative process. Through the process, the intentions of the people are represented as laws based on written forms. The legislature as products embodied and realized through the process regulates treatment, protection and adjustment between the people, the people's rights and duties to states, duties of states and the way to execute them. Therefore, in constitutional perspective, the legislative process is important under the representative democracy politic system as it discusses and documents orders of states. So the legislative process preconditions that the parliament goes through a series of processes when it enacts the law with certain legislative purposes. The most important standards in analysis of this legislative process are democracy and efficiency. That is, the goal to be pursued in research on the legislative process theory based on representative democratic politics is to prepare organized systems of legislative procedure such as organizations and management procedure of legislative system so that laws agreed by everyone may be enacted according to democratic procedures. Therefore, democracy and efficiency are variables to evaluate and analyse various institutional systems in legislative process. The parliament has an internal property to secure democracy as it is basically a board of representatives, its efficiency is insufficient. The efficiency of the legislative process to respond to the demands of contemporary society that leads to demands of diversified legislature is necessary in reality. The efficiency should be based on protection of the minority in political perspective. Under democracy, when the minority group does not have possibility to develop its intentions and is exposed to decision of the politically major group, the legislative process is not justified. Therefore, for efficiency of the legislative process, the minority should be protected and equal opportunities should be secured. So, the legislative process should be based on both democracy and efficiency. To meet the conditions of democracy and efficiency, the constitution and the parliament law specify the legislative processes from presentation, discussion, decision and declaration of the bills. Specified procedures and methods are institutionally and lawfully supported. However, actual legislative process does not satisfy both democracy and efficiency. The legislative process is inclined to efficiency, which causes a damage of democracy. In particular, due to today's trends of administrative state and political party state, efficiency of the legislative process is emphasized. Thus, emphasis on efficiency and obstruction to democracy are caused by functional change of the parliament. The parliament is designed as a place for open intentions and discussion, but decisions are made by committees or subcommittees because of a tendency of political party state. The committeemen is restricted to their political parties, and express their opinions and vote according to the policy of their parties. The parliament has bee reduced to a place where policy decided by the political party leaders is displayed, not a plaza of open discussion. The minority who have opposite opinions are not allowed to express their intentions or discussion or persuasive process may be omitted. Entering the 20th century, social state, administrative states and political party states appeared due to two world wars, frequent economic depressions, and consistent international tension and caused weakness or decline of parliamentarism. Accordingly, the legislative process has focused on efficiency rather than democracy. Therefore, specific procedures and methods of legislative process need a constitutional speculation to meet democracy and efficiency at the same time. How the legislative process should be improved should be speculated so that basic human rights and democratic justice can be secured and national order can be established. The meaning and function of the legislature in contemporary constitutional states are directly involved with duties of the legislature in democratic order and order of social and law-governed states. The legislature decides basic matters of community society, promotes resonable and stable decision and secure freedom with extensive participation of the executive based on democratic and procedural justification. Therefore, the legislative process should be democratic and reasonable. To coordinate and reflect polycentric interests and various intentions of the people, the legislature should promote actual discussion and reinforce democratic control. In addition, in respect to specific technology and efficiency demanded by contemporary welfare states, the legislative procedure and method the executive incorporate interests and intentions of the people through the parliament is important. Problems involved in the legislative process of the parliament include the domination of the legislature by the executive, superficial discussion of the parliament due to association of the executive and political parties and discussion dominated by standing committees, insufficient consideration of the public opinion in legislature process in spite of the principle of opening of the legislative process. Also, for the bills presented by congressmen, because of lack of extensive and intensive information and specific knowledge, the bills fall behind the bills presented by the government both in quality and in quantity in respect to choice of the legislative policy and drafting of the bills. It is actually difficult for the congressmen to present the bills independently without cooperation of the executive or their political parties. In a process of discussion, opposition is intensified between the administration party and a nongovernment party because of interests of each party and opposition between the political parties dependant on the number of parliamentary seats, which is reflected in the legislative process. Therefore, this study speculates how the legislative process with such problems is improved. Specifically, the legislative process should consider efficiency and the least financial burden to the public based on the principle that it should secure democratic justification. The current constitution and the parliament law provide institutional systems to satisfy democracy and efficiency at the same time according to stages of the legislative process. However, there are many cases that efficiency is obstructed because of the focus on democracy or democracy is obstructed because of the focus on efficiency. Therefore, this study speculates the institutional systems in democracy and efficiency aspects. First, reinforced parliament legislative systems in drafting of the bills may secure democracy in that it may converge the opinions of the people, and improve efficiency in that it may transform the opinions of the people into bills. The legislature announcement system or the opening of the drafting process may contribute to securement of democracy in that it notifies the contents of the bills to the public. The reinforced petition function may secure democracy in that it may converge the opinions of the people. The use of professional groups or organizations may secure democracy in the perspective of convergence of the opinions of the public, and improve efficiency in that it may identify the demands of the legislature properly and transform them into the bills. Second, the mitigated number fixing for proposals presented by congressmen may secure democracy in that various opinions of the people may be changed into bills and presented as subjects of discussion in the parliament. Long-term legislature plans of the bills proposed by the government may improve efficiency in that it prevents excessive quantity of the bills and specifies the legislative process. Third, discussion and decision of the bills may be classified into submission to committees, judgement by committees, and discussion and decision through a main session. The system of submission may secure democracy in that committeemen of concerned committees in addition to committeemen of the main committee are permitted to discuss the bills. The fixed bill judgement period system may improve efficiency as the committees fix the period of judgement and force the judgement to be completed within the period, but as it may obstruct democracy, its abnormal management should be prevented. In respect to judgement of committeemen, abolition of the 2-year term system of standing committeemen may secure democracy in that it promotes exact consideration of the opinions of the public. The abolition of political party politic conference system may obstruct efficiency but may improve democracy in that the parliament should be legislative arena where various opinions of the public are presented and discussed. The 2-step bill judgement system may secure democracy in that careful consideration of the bills may be encouraged through extension of judgement period from one day to two days. Reasonable management of sub-committees designed for expansion of sub-committee activity area, closure of sub-committee conference, expansion of number of sub-committees and joint management of sub-committees may encourage both democracy and efficiency by considering importance of sub-committees. The bill exclusive charge committeemen system and assistant use of professionals may improve efficiency in that it adds professionalism to discussion of the bills. Construction examination, reinforcement of voting, abolition of regular meeting system and the introduction of regular public hearing system may secure democracy in that it encourages careful discussion of the bills. Live broadcasting of the legislative process in discussion and decision of main session may secure democracy in that how opinions of the people are considered may be confirmed. The activated bill judgement promotion system may improve efficiency in that discussion on the bills by main sessions may be completed within a prescribed period. The two-times of regular meeting or change of the inspection period may improve efficiency in that it encourages division of heavy tasks. The fixed proposal period of main session may secure democracy in that it provides a period through which members of other committees are familar with the bills by setting a certain period for proposals of the bills whose judgement is completed by committees. The mitigated number requirement for proposal of the revised bills may secure democracy in that it helps reflection of the opinions of congressmen to the legislative bills easier. Fourth, in respect to declaration of the laws, dualized publication of the official Gazette such as the laws and ordinances, and other notifications ? public announcement and data, and computerization of the laws may secure democracy in that it notifies the laws discussed and decided by the parliament to the public. However, ten years have passed since local governments revived, but the understanding of local parliaments by the public is still insufficient. Excessive control and intervention of the central government in local governments are a great restraint to establishment of local government system and autonomous legislative rights. In addition, ordinances that deal with every setting of community people have been ignored because of lack of recognition of local public officers and the public. Few of the public or only a few people concerned participate in local parliaments that deal with the proposed bills of ordinances. As the people do not tend to approve that local parliaments could make special ordinances for the people, they themselves resist preciousness of autonomous legislative right. In addition to problems involved in enactment and abolition of local parliament ordinances, the legislature have institutional and operational problems such as too narrow range of autonomous legislature, lack of specificity of committeemen, superficial discussion of ordinances, lack of efforts of committeemen to enact legislative ordinances, and insufficient legislative assistance function. For activation of autonomous legislative function with such problems mentioned above, first, the range of too narrow autonomy should be expanded. In consideration that most of the business of local governments is entrusted by organs, entrusted business should be transferred to local business. Second, the procedure of legislature announcement system should be legislated. When committeemen plan the legislature, opinions of the staff concerned or the people should be properly considered, which will contribute to reduction of problems in respect to validity of ordinances. Third, performance of the legislative activities of the committeemen should be regularly evaluated. In the future, the evaluation system of institutional legislative activities should be introduced, through which performance of the local committeemen is regularly evaluated and the results are notified to the community people, the staff and organizations concerned. It may contribute to saving of tax expenditures. Fourth, in respect to appointment of professional committeemen, appointment standards should be legislated so that the persons who are familar with practical task of the legislature and have specified education on the legislature may be appointed. For improvement of specificity of legislative activities of local parliaments and committeemen, the system of professional committeemen who assist legislative activities should be improved. Fifth, professionals in various fields involved in legislative activities should participate in the process. For activation of autonomous legislative function, institutional systems that professionals in corresponding fields are used should be prepared, or various proposals or reports should include opinions of local professors or professionals in various fields or human resources poll may be introduced. Sixth, the assistant organization for congressmen legislature should be reinforced. Assistant human resources who have experiences of judicial office may be employed or judicial curriculum for the staff in charge of congressmen assistance should be prepared. Seventh, for validity of ordinance implementation, control and intervention of the central government should be reduced and the regulation of penalty which is imposed in violation of autonomous laws and regulations should be legislated. If penalty is not imposed on when the people violate the ordinances even though they are designed for them, the ordinances are reduced to invalid laws. Eighth, for expanded participation of the public, the public proposal system should be introduced, which is very important for activation of autonomous legislative function. In respect to enactment, revision and abolition of ordinances of local parliaments, the community people are allowed to ask enactment of ordinances in Japan. So Korea need the introduction of the system. This study presents suggestions on improvement of the legislative process-the legislative process of the parliament, and autonomous legislative process in that the constitutional standards that declare respect, values and basic rights of individuals are embodied in forms of laws through legislative process. For securement of democratic justification, the legislative process should be opened so that various opinions of the public are converged to the parliament. Also, for promotion of efficiency, legislative demand of the public should be properly satisfied. For establishment of autonomous legislative right which reflects regional characteristics, the central governments and local governments should control legal and institutional intervention, share information and data with the local parliaments to prepare autonomous legislature for the public, and cooperate each other to encourage autonomous governments and activate autonomous legislative functions of local parliaments.