By law, the national power of the Republic of Korea is divided into three independent powers, which are legislative, executive, and judicial. These powers keep the balance by checking one another. According to the Constitution, the legislative power b...
By law, the national power of the Republic of Korea is divided into three independent powers, which are legislative, executive, and judicial. These powers keep the balance by checking one another. According to the Constitution, the legislative power belongs to the national assembly, the judicial power to the court and the executive power to the government led by the President. The government (central public administration) consists of the president, prime minister, ministers of government branches, and other administrators.
Constitutional Law Article 96 provides that the establishments and institutions of each administration branch shall be laid down by the law, which means the claim for democracy and rule of law in the process of organizing administrations.
In addition to the ministries, national councils, board of audit and inspection, national election commission, also have their legal foundation in the Constitution. Under the rule of law for administrative organization, the law which stipulates the basic structure of it is the act of government organization. This statute was enacted in 1948, with the Constitution, and it was honored as the first statute law in the history of Korea. Government organization act provides the presidency, the prime ministry, the administrative departments under the prime minister, and the organizations and duties of each ministry, As for local government, the local government law was enacted and started to be enforced in July 4, 1949. Though there have been many rises and falls, it now seems to be its way to progress.
This report will make you survey the types and characteristics of the special public administrative organization, with the current conditions, on the view point of changes and promotions of Korean public organization. But more direct and detailed discussions on the nation and local entities are omitted. Therefore, the following statements will be only about special public administrative organizations of Korea excluding those mentioned above(the central government and the local governments). For convenience, I call those organizations "special public administrative organization." My report contains the concepts of public administrative organization, and special public administrative organization(II), changes of legal principles on special public administrative organization(III), legal relations of special public administrative organization(IV), rights and privileges of special public administrative organization(V) regulations on special public administrative organization(VI), the special public administrative organization and remedy(VII),and the necessity for public reconsideration about special public administrative organization in a row. A brief conclusion is added in the end of the report.
The subject of administration is largely categorized into the nation and the public institutions for meeting various administrative demands of the people. The public institutions include local government, Public cooperation, public foundation, public establishment and public enterprises. Among these, the nation and the local government which have comprehensive public power are at the center of public administrative organizations.
Public corporations are the institutions founded by the people with certain qualities and purposes. These are different from private corporations in an aspect that their legal grounds and purposes are on the special public statutes.
The instances of public corporations are the group of lawyers, that of doctors and the chamber of commerce and industry, which are the groups of people with specific vocations. For other instances of special public association, first of all, there are city development associations, city improvement associations, whose purposes are to improve the living environment, Cooperation of small-to-medium sized enterprises, agricultural corporations, fisheries cooperatives are the established public entities of people engaged in those corresponding businesses.
Public foundations are public administrative organizations which are endowed with status of public legal person for the properties given on special administrative purposes. Korea research foundation and Korea science foundation are the cases. The public organization endowed with legal personality, both the human and material facilities complex which is established to carry out specific purpose in organizational law is called public establishment(o¨ffentlich-rechtliche Anstalt). Instances are Korea Broadcasting System, the Bank of Korea, Korean Highway Management Corporation, jail, libraries and museums, etc. Public facilities are distinctive from public establishment. Though they are the human and material utilities established for special national purposes, they are usually accepted as material facilities. However, in statutes, there is a tendency to use the term, public facility, as the term of public establishment.
Special public organization differentiated from public establishment is a public enterprise. When we understand public enterprise as human and material compound facilities providing administration services for the people, we can hardly tell the differences between them. But public enterprise can be differentiated from establishment when we consider public enterprises companies run by the national or local government for the public interest.
New local special public organizations are being established continuously along with activations of local government. The act for local public enterprise provides that local enterprise such as local public company, Public corporation should be founded according to the related acts. To prevent too many establishments of local enterprises the law advises to scrutinize the necessity of a prospect local enterprise in the matter of influences and capabilities on the residents' welfare and local economy.
Another business which is also differentiated from local enterprises is the third sector. This is a cooperated business activities between local government and civilians. Some say that the third sector is all kinds of government-civilian cooperation including local enterprise, but strictly speaking, the third sector companies should have around 25%-50% of government investment, while local enterprise over 50% of that.
A new law named 'The law for public enterprise management' is made to realize the management rationalization and to promote transparency. This law aims for the rational regulations on the various government institutions, substituting the former 'act for management of government invested companies' and 'act for management of organizations under the control of government'. In the following circumstances, as the government owns the highest investment proportion, as there is any investment ground in law, as government support is over 1/2 of the total income corresponding institution or group, as government and government related company or institution own the highest proportion, and finally as government or government related company invest, if needed, the minister of planning and budget appoints them to be the public organizations under this law considering government financial support and the institutions' public character.
By this law, public organization is sub-classified into public enterprise and quasi-government organization. Being a public enterprise means that the amount of its income is over 1/2 in the total income(average amount for 3 years). As a rule, it is the President who appoints the head of public enterprise, while the executives of quasi-government organization are appointed by the head of management institution. There are supervisions on public enterprise by the minister of planning and budget as well as by the competent minister. The accounts of public enterprise and quasi-government organization should be done in accordance with the principle of company accounting to clarify the management results, property increase/decrease and phases of changes.
For a process of the appointment of public organization executives, a recommendation committee is to be made up. The recommendation committee consists of non-existing directors and private committee members chosen by the directors' board.
Public enterprise is sub-classified into market type and quasi-market type. Among the enterprises, if their asset volume and local government income are over certain extents in the total income, the companies are regarded as market type public enterprise. The others are thought to be quasi-market enterprises.
Public organizations are guaranteed the independent self-control management to ensure the responsible management system. New legal regulations to be introduced to public organizations are pre-assessments of establishment, public announcement of management system, etc.
Currently Korea's changes and developments in public administrative organizations are in the huge stream of deregulation and privatization. Privatization can be visualized in many ways such as transfers of national tasks to the private companies, transfers of the rights of possessions or managements, and those of management modes and supervisions. The variety of government/public institutions mentioned before and different legal regulation modes reflect the various aspects of privatization. Recently a large portion of former governmental activities has been changed into private commissions and investments, which reflects far more active and complete privatization or deregulation phenomena. There should be certain regulations and remedies for public securities to prevent private companies from being immersed in the commercial interests when public works are done by the private investment groups.
We are under the discussion that there should be clearly defined ways to insure the public interest in the law, legal orders and local government regulations. Also, the way of regulations through administrative activities or conditions attached to them is being discussed.
Korea's special administrative organization has been greatly expanding due to the expansion of national activities and duties. Many kinds of laws are legislated and enforced as a way to regulate public entities organized with the administrative demands for their purposes. These laws have various kinds of legal principles for controlling public organization in both aspects of personnel and budgets and for ensuring public interest.
Traditionally, discussions about public establishment have focused on the rule of law and have been used to explain the exceptional phenomena or to insist the necessity for legal regulations on the particular legal relations. The rule of law for the administrative organizations and the personnel and budgetary regulations means the democratic supervision and surveillance on these activities. By the way, there has been a prominent tendency to take the efficiencies and results of public enterprise activities seriously lately. This means that effectiveness or market economy along with rule of law and democracy are deeply penetrated in the public administration fields. That is, while traditional establishment theory was the administrative view focused on public power, recent view is centered on public or economic interests. Public interest or publicity has so complicated meanings that we can not define it briefly.
Public administrators who monopolized the public powers used to be thought to take all the duties for public welfare realization in the past. However, today we can see the tendency that the responsible entities and types of public welfare realization disperse. To achieve the aimed duties, the tasks of current administrative organization laws' are to verify what the genuine duties of administration are and what the best ways and the most proper legal systems will be amid rapidly changing administrative environment and with appearances of new administrative organizations and operation modes.