The Legal Review and Exclusion Rights of Administrative Public Officials

There are few constitutional and administrative law scholars discussing whether administrative officials should recognize the right to refuse to apply illegal laws, and they all deny or partially recognize the right of administrative officials to refuse to apply laws. Existing views appear to be those that place more importance on legal stability (one of the Rule of Law) or the hierarchical order of administration. It does not make sense considering that there are no objections to the “Principle of Practical Rule of Law” or “Principle of Legal Superiority” today. The question of whether or not the right to reject the application of laws and regulations is recognized is questionable whether unnecessary controversy has arisen due to a misunderstanding of when it is finally determined. Whether or not the right to reject the application of laws and regulations is recognized should be the best answer when asking legal responsibilities to the relevant public officials, such as disciplinary responsibility and liability for damages, not when the right to reject the application is exercised. It is absolutely unacceptable as self-denial of the law to hold public officials accountable for exercising the right to reject the application without applying illegal laws. In theory, it is the same as above, but the cases where there are provisions in the actual law can be viewed differently. Since Article 107 of the Constitution of Korea grants the right to jurisdiction of unconstitutional laws to the Constitutional Court, not to the Supreme Court, it can be said that it is difficult to recognize the right to reject the application of unconstitutional laws, which is not recognized even by judges, to administrative officials, which is a reason to treat the case of a law and a regulation. Even if administrative officials are granted the right to refuse to apply unconstitutional or illegal regulations, there are no side effects such as paralysis of state affairs, and even if the rights are recognized, it is not likely that officials under a strict hierarchy will actually exercise them, so rather than worrying about side effects that will not exist for the protection of people’s rights and the development of democracy, they should consider ways to increase the possibility of actual exercise.