论韩国《行政调查基本法》及其对我国的立法启示

发布时间：2019-05-17 17:48

【摘要】：韩国《行政调查基本法》是目前世界上唯一一部以统一立法模式制定的行政调查的法规。这部法规颁布实施以来,韩国国内重复行政调查严重、行政调查混乱无序的状况得到了显著的改善,它的实效性在韩国今天的行政调查现状中得到了充分的体现。鉴于我国行政调查实施混乱无序、行政调查法规严重缺失,行政调查学术研究止步不前的现状；又考虑到在行政调查方面,韩国与我国基本情况的诸多相似之处。所以笔者选择以韩国《行政调查基本法》作为研究对象,从立法角度对其进行考察,包括它的立法背景、历程、立法成果和施行后韩国学者们提出的完善建议等诸多内容,笔者都将一一对它们进行介绍与探讨。最后总结这些内容对我国行政调查立法的启示。本文共分为五个部分,第一部分：行政调查概述,主要介绍行政调查的概念,世界各国行政调查的立法现状和选择韩国《行政调查基本法》为考察对象的原因。这一章中首先介绍行政调查的概念,然后以英、美、日、韩四国对行政调查立法的现状,引出目前世界关于行政调查立法的三种模式,最后阐述由于韩国与我国在各方面的诸多相似之处,所以选择韩国《行政调查基本法》为考察对象的原因。第二部分：韩国《行政调查基本法》的立法历程,主要介绍韩国行政调查立法的背景,方案的选择及制定与修订。按照时间顺序,介绍立法前韩国行政调查的状况,突出立法背景的特色；然后介绍韩国《行政调查基本法》立法方案比较分析与选择,最后介绍韩国《行政调查基本法》立法的经过,突出韩国国内对该法的重视。第三部分：韩国《行政调查基本法》的主要内容评述,按照该法的自身结构,分总则、分则两部分介绍它的主要内容,并对部分条款结合韩国国内学者们的立法讨论进行分析,阐述笔者个人的观点。第四部分：韩国《行政调查基本法》的特色与缺陷,根据前面讲过的内容及其在颁布实施后曝露出的缺陷,总结《基本法》的特色与缺陷,并结合韩国国内的学者们为完善该法所提出的建议,进一步提出完善这些缺陷的办法。第五部分：肯定韩国《行政调查基本法》对我国的借鉴意义,并着重总结韩国《行政调查基本法》对我国行政调查的立法启示。承认韩国《行政调查基本法》的立法模式、理念和程序性内容对我国行政调查立法的正面意义,并结合上一章讲过的该法中的缺陷,从反面吸取教训,实现正反两面的借鉴；并结合我国的实际情况,阐述我国行政调查从韩国《行政调查基本法》中得到的立法启示。
[Abstract]:The basic Law of Administrative investigation in South Korea is the only administrative investigation law formulated by unified legislation in the world at present. Since the promulgation and implementation of this law, the repeated administrative investigation in South Korea has been serious, the disorder of administrative investigation has been significantly improved, and its effectiveness has been fully reflected in the current situation of administrative investigation in South Korea. In view of the chaos and disorder in the implementation of administrative investigation in our country, the serious lack of administrative investigation laws and regulations, and the present situation of administrative investigation academic research, and considering the similarities between the basic situation of South Korea and our country in the aspect of administrative investigation, it is also considered that there are many similarities between South Korea and our country in the basic situation of administrative investigation. Therefore, the author chooses the basic Law of Administrative investigation in South Korea as the research object, and investigates it from the legislative point of view, including its legislative background, course, legislative achievements and suggestions put forward by Korean scholars after its implementation, and so on. The author will introduce and discuss them one by one. Finally, it summarizes the enlightenment of these contents to the legislation of administrative investigation in our country. This paper is divided into five parts: the first part: an overview of administrative investigation, mainly introduces the concept of administrative investigation, the legislative status of administrative investigation in the world and the reasons for choosing the basic Law of Administrative investigation in Korea as the object of investigation. In this chapter, the concept of administrative investigation is first introduced, and then the current situation of administrative investigation legislation in Britain, the United States, Japan and South Korea leads to three modes of administrative investigation legislation in the world at present. Finally, this paper expounds the reasons why the basic Law of Administrative investigation in South Korea is chosen as the object of investigation because of the similarities between South Korea and China in all aspects. The second part: the legislative process of the basic Law of Administrative investigation in South Korea, mainly introduces the background of the legislation of administrative investigation in Korea, the choice, formulation and revision of the scheme. According to the time order, this paper introduces the situation of Korean administrative investigation before the legislation, and highlights the characteristics of the legislative background. Then it introduces the comparative analysis and selection of the legislative scheme of the basic Law of Administrative investigation in South Korea, and finally introduces the legislative process of the basic Law of Administrative investigation in South Korea, highlighting the importance attached to the Law in South Korea. The third part: comments on the main contents of the basic Law of Administrative investigation in South Korea, according to its own structure, divided into general provisions, divided into two parts to introduce its main contents, and some provisions combined with the legislative discussion of domestic scholars in South Korea are analyzed. This paper expounds the author's personal point of view. The fourth part: the characteristics and defects of the basic Law of Administrative investigation in South Korea, according to the contents mentioned earlier and the defects exposed after its promulgation and implementation, this paper summarizes the characteristics and defects of the basic Law. Combined with the suggestions put forward by scholars in South Korea to improve the law, the methods of perfecting these defects are further put forward. The fifth part: affirm the reference significance of the basic Law of Administrative investigation in South Korea to our country, and focus on summing up the legislative enlightenment of the basic Law of Administrative investigation in Korea to the administrative investigation in our country. To recognize the positive significance of the legislative mode, concept and procedural content of the basic Law of Administrative investigation in South Korea to the legislation of administrative investigation in our country, and to draw lessons from the negative side and realize the positive and negative reference in the light of the defects in the law mentioned in the previous chapter. Combined with the actual situation of our country, this paper expounds the legislative enlightenment of the administrative investigation in Korea from the basic Law of Administrative investigation in Korea.
【学位授予单位】：延边大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D931.26;DD912.1

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