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캐나다 판례법상 행정조사의 절차적 공정성 법리에 관한 고찰

Title
캐나다 판례법상 행정조사의 절차적 공정성 법리에 관한 고찰
Other Titles
The Duty of Fairness in the Administrative Investigation Process in Canadian Jurisprudence
Author
윤혜선
Keywords
행정조사; 자연적 정의; 적법절차의 원칙; 절차적 공정성; 공정성 의무; 캐나다; Administrative Investigation; Natural Justice; Due Process of Law; Procedural Fairness; Dutyof Fairness; Canada
Issue Date
2012-05
Publisher
韓陽法學會(Han Yang Association for Legal Studies)
Citation
漢陽法學(Han Yang Law Review), May 2012, 38, P.179-211, 33P.
Abstract
It is trite to say that administrative investigations are required to be conducted in accordance with the principle of due process of law in Korea. However, so far, there has not been many studies showing the implementation of the principle within the investigative process. This is maybe because it is inherently difficult to make generalizations about the issue of the procedural fairness in the investigative stage. The structure of administrative tribunals and agencies varies significantly, and different tribunals and agencies utilize different investigative processes. Furthermore, the types of power being exercised by investigating bodies are widely divergent. As a result, each case must be considered on the bases of the empowering legislation and the duties and powers of the investigator. This article examines the Korean administrative investigation system and the application of the principle of due process of law in the administrative investigation context. Also it analyses the duty of fairness in the investigative stage of administrative proceedings in Canadian jurisprudence and demonstrates how the doctrine of procedural fairness, which derived from the principle of natural justice, evolved into such a duty and how it shaped its contents, so as to provide insights into latest development and thinking of the principle of due process of law in Korea. In Canada, the duty of fairness in the investigative stage of administrative proceedings has evolved. Although at one time there was little room for the application of procedural fairness during investigations, it is likely that such a blanket statement no longer holds true. The courts appear to be expanding the scope of judicial review over administrative proceedings, including being more willing to hold investigators to higher standards. Determining what duties an administrative tribunal owes to an individual whose rights may be affected requires an examination of the statutory provisions in question and a review of the nature of the decision to be made, the relationship between the administrative body and the individual, and the effect of the decision on the individual’ rights.
URI
http://www.dbpia.co.kr/Article/NODE01899461http://hdl.handle.net/20.500.11754/49838
ISSN
1226-8062
Appears in Collections:
SCHOOL OF LAW[S](법학전문대학원) > Hanyang University Law School(법학전문대학원) > Articles
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