Jo Eung-cheon "The National Assembly Has the Authority and Duty to Control Administrative Legislation... The Amendment to the National Assembly Act Is Not Unconstitutional"

Academic Circles Divided Over Jo Eung-cheon’s National Assembly Act Amendment Proposal

[Image source=Yonhap News]

[Asia Economy Reporter Naju-seok] On the 25th, Cho Eung-cheon, a member of the Democratic Party of Korea, stated that the National Assembly has the authority to control administrative legislation, directly refuting the controversy over its constitutionality. In academia, a debate was held regarding the issue of infringement on the powers of the executive and judiciary in relation to the National Assembly Act amendment bill proposed by Rep. Cho last month.

At the “Forum on Exploring Measures for the National Assembly’s Control of Administrative Legislation” held at the National Assembly that day, Rep. Cho said, “Article 40 of the Constitution clearly states that the authority to enact and amend laws belongs to the National Assembly,” adding, “As stipulated in the Constitution, presidential decrees are subordinate to laws, and prime ministerial and ministerial ordinances are subordinate to laws and presidential decrees as subordinate statutes, and they have clear limits that they cannot exceed the delegation scope granted by the National Assembly. In other words, administrative legislation is a power derived from the legislative authority of the National Assembly and granted to the executive branch in a limited manner.”

He continued, “There are criticisms that the executive branch distorts the purpose of the law by exceeding the delegation scope or enacts administrative legislation that goes beyond the authority granted by the Constitution, such as defining limits on the freedoms and rights of the people that should only be restricted by law,” and introduced, “Among 3,273 administrative legislations in the past two years, the National Assembly pointed out issues in 164 cases. Of these, 65 cases (39.6%) were inconsistent with the purpose and content of the superior laws, and 7 cases (4.3%) involved restrictions on rights or imposition of obligations without delegation grounds.”

He argued, “This is precisely an infringement of the National Assembly’s legislative authority by the executive branch and an act that violates the separation of powers. As the constitutionally mandated legislative body, the National Assembly has the obligation to control whether the executive branch is properly conducting administrative legislation.” He added, “Under the current National Assembly Act, the control measures are limited to resolutions by the plenary session for presidential and prime ministerial decrees, and notifications by standing committees for ministerial ordinances, which merely convey the review process and opinions on handling. Even if the government does not accept or evades these, there are no binding means to enforce compliance.”

Professor Lim Ji-bong of Sogang University Law School, who presented at the forum, said regarding Rep. Cho’s National Assembly Act amendment bill proposed last month, “It does not infringe on the executive branch’s authority to enact administrative legislation, nor does it infringe on the judiciary’s judicial review authority over administrative legislation, so it does not violate the principle of separation of powers. Compared to advanced foreign countries such as the UK and the US, where the legislature controls administrative legislation, it is hard to see it as a system that violates the separation of powers principle.” He also argued, “There is a great need to establish mechanisms to strengthen the National Assembly’s control over administrative legislation in terms of enhancing the National Assembly’s oversight over the executive branch.” In this regard, he introduced the idea of establishing and operating a permanent subcommittee for reviewing administrative legislation called the ‘Administrative Legislation Subcommittee’ as an eye-catching proposal.

However, Professor Park Jin-young of Kyung Hee University Law School argued, “If the National Assembly directly demands modifications or changes to enforcement ordinances, it goes beyond the level of ‘control’ and becomes direct ‘decision-making’ on the content. If the National Assembly directly decides the content of administrative legislation, it cannot be denied that this infringes on the executive branch’s administrative legislative authority.” He suggested that Rep. Cho’s National Assembly Act amendment bill could infringe on the administrative legislative authority. He also pointed out that since the judiciary has the ultimate authority for legal interpretation, “it would substantially undermine the judiciary’s authority to control administrative legislation, which is highly inappropriate.” Additionally, Professor Park raised issues regarding the ‘principle of separation of powers,’ ‘violation of constitutional legislative procedures,’ and ‘whether the regulatory method through the National Assembly Act conforms to norms.’

This content was produced with the assistance of AI translation services.