Expertise

Administrative Interpretation (Advanced Ruling)

Vague, conflicting, or omitted provisions in statutes may be clarified through interpretations from relevant government agencies. The most common bases for filing a petition for administrative interpretation are legislative compatibility, legislative intent, interpretation of comparable law in another country and practical necessity. Since municipal agencies, impendent from each other, are charged with the enforcement of laws, obtaining administrative interpretations is effective in minimizing enforcement discrepancies across municipalities and preventing unnecessary disputes.

In 2005, the President Roh’s administration, through a presidential decree, implemented the Rules on Legislative Work whereby the Legal Interpretation Review Commission, composed of two (2) government officials and seven (7) civilian experts, was formed inside the Ministry of Government Legislation. The mandate of the Legal Interpretation Review Commission is to review legal interpretations of government agencies to ensure their accuracy and reasonableness, with the aim of reducing misinterpretations that may have been caused by administrative convenience or interested parties. As a result, administrative interpretations are becoming ever more important as a means to resolve practical issues. In addition, filing for an administrative interpretation has become a useful tool before pursuing a new legislation or amendment. 


Legislation and Amendment

Sometimes, corporations find themselves unable to carry out businesses in Korea because of existing laws or regulations. Although they may turn to traditional means of dispute resolution in cases where constitutionality or legality is being challenged, these means may not be suitable for issues that do not rise to the level of such challenges. In such cases, introducing a new legislation or an amendment to existing laws might be the most effective means of resolution.

Introducing new legislations or amendments requires, above all else, understanding business requirements of corporations, identifying the most appropriate laws to introduce or amend that would accomplish such goals efficiently, researching legislations, legislative intent, or necessity in practice to offer as grounds for introducing new laws or amending any of the existing laws, and discussing them with relevant government agencies for resolution.

Mechanisms for introducing proposals for new legislations or amendments vary depending on the nature of the law in question, i.e., whether it is a statute, presidential decree or something else, and the means of approach also vary from discussing directly with the relevant government agencies, to having the National Assembly, the Anti-Corruption & Civil Rights Commission, the Regulatory Reform Committee or the Ministry of Government Legislation make recommendations to the relevant government agencies and to, with the involvement of the relevant government agencies, having members in the relevant committees of the National Assembly to introduce new legislations or amendments.


Administrative Review and Lawsuit

In some cases, the facts based on which an administrative action has been taken are disputed. However, in many cases, administrative actions are based on erroneous application of laws or application of laws whose constitutionality or legality is challengeable. Although laws, in general, are not subject to administrative reviews or lawsuits, it may nevertheless be subjected to administrative reviews or lawsuits in cases where the constitutionality or legality of such laws is challengeable.

In other words, where administrative interpretation and introduction of new laws or amendments to existing laws are inadequate, administrative reviews and lawsuits would be the last resort. In such cases, Lee & Ko’s Legislative Consulting Group works in close cooperation with the Litigation Group to establish the most appropriate litigation strategy and representation for our clients.