Do Tables of Sanction Criteria Bind the Courts: Maximum Limits in the Appended Tables of Enforcement Decrees, the Internal-Guideline Character of Disposition Criteria in Ministerial Ordinances, and Public Notices That Departed from the Form of Delegation

Question

In cases contesting a large administrative fine or a business suspension order, the administrative agency ordinarily relies on a disposition criteria table. The types of sanction and the amounts are set in a table according to the type and number of violations, and the agency states that it acted in accordance with that table. At that point, whether the court must apply the table as if it were law, or instead treat it as an internal standard of the administrative agency and separately examine whether the disposition exceeded the bounds of discretion, determines the structure of the lawsuit.

Article 75 of the Constitution of the Republic of Korea provides that the President may issue Presidential Decrees regarding matters specifically delegated within the scope prescribed by Act and matters necessary for the enforcement of Acts, and Article 95 provides that the Prime Minister or the head of each ministry may issue Orders of the Prime Minister or Orders of the Ministry, regarding affairs under their respective competence, by delegation of an Act or Presidential Decree, or ex officio. Disposition criteria may be established at any stage of this chain, and are sometimes established in forms not directly enumerated in the Constitution, such as public notices or directives.

This article asks three questions. First, how do the administrative fine standards set forth in the tables attached to a Presidential Decree bind the court? Second, do the sanction disposition criteria set forth in the tables attached to an Order of the Ministry have external effect, and if they do not, how is a disposition made in conformity with those criteria reviewed? Third, if a higher-ranking statute delegated the matter prescribing a specific form, but an administrative agency established the criteria by a public notice of a different form, what effect does that public notice have?

The three judgments respectively concern the former Youth Protection statutes, the former Pharmaceutical Affairs statutes, and the former Housing Construction Promotion Act and former Housing Act. This article reads the judgments on the basis of the statutes and subordinate statutes in force at the time of the conduct, and sets out the provisions of the current General Act on Public Administration and Framework Act on Administrative Regulation only to the extent that they may be compared with the legal principles of the judgments.

Material to check

First, verify the grounds provisions stated in the written disposition. Check which article and which attached table of which Presidential Decree, Order of the Ministry, or public notice the written disposition cited alongside the provisions of the Act, and whether standards in several forms were applied cumulatively to a single disposition. In the case of Supreme Court Decision 2007Du6946, the Summary of Decision shows that the criteria for business suspension were in the tables attached to the Enforcement Rule, while the calculation criteria for the administrative fine in lieu of business suspension were in the tables attached to the Enforcement Decree; accordingly, the form of each criterion must be recorded separately.

Next, draw the chain of delegation. Verify from the original text what the Act delegated and in which form, for example, whether it said 'as prescribed by Presidential Decree,' 'as prescribed by Order of the Ministry,' or only 'as prescribed by the Minister.' In Supreme Court Decision 2010Da72076, the change in the words of delegation before and after the amendment of the Act, from 'as prescribed by the Minister' to 'procedures, etc. prescribed by Order of the Ministry,' divided the conclusion.

Third is the legislative history of the amendments to the Act and the supplementary provisions. If the enabling Act was wholly revised, check whether the public notices or rules made under the former Act accord with the form of delegation of the new Act, and whether the transitional provisions of the supplementary provisions are intended to preserve the effect of the former criteria. Supreme Court Decision 2010Da72076 did not read Article 2 of the supplementary provisions of the wholly revised Housing Act as intended to continue recognizing the effect of the former administrative rule as delegated legislation.

Fourth is the structure of the disposition criteria table. Check whether the amount is stated as a fixed sum, whether only a maximum limit is set with room for aggravation or mitigation, and whether grounds for mitigation are separately enumerated. Since Supreme Court Decision 99Du5207 viewed the amount of the administrative fine in the table attached to the Presidential Decree not as a fixed sum but as a maximum limit, it must be read not only with the text of the table but together with the purpose of the delegation in the parent Act.

Fifth is the record of the disposition process. Whether the content of the sanction stated in the prior notice differed from the final disposition, and internal documents showing that the administrative agency reviewed factors such as the scale and duration of the violation, the degree of social condemnation, punishment under other Acts, the actor's personal circumstances, and the scale of the unlawful gain, become materials for the review of discretion.

Finally, verify the range of the criteria's content affecting the rights and duties of the people. Supreme Court Decision 2010Da72076 held that the Standards for Payment of Supervision Fees did not constitute an enforcement order, on the ground that, by prescribing the method of determining supervision fees through competitive bidding, the method of calculating construction costs, and the like, they contained content restricting the freedom of contract of the general public. The proviso to Article 4 (2) of the current Framework Act on Administrative Regulation defines the cases in which matters may be prescribed by public notice, etc. as cases where delegation is specifically made within a defined scope as to matters that are technical or minor and whose delegation is inevitable given the nature of the work.

Possible readings

The first interpretation is a reading that divides effect according to form. The criteria in the tables attached to a Presidential Decree are delegated legislation, the sanction disposition criteria in the tables attached to an Order of the Ministry are internal rules of office procedure, and a public notice has the effect of delegated legislation only insofar as it accords with the form of delegation under the higher-ranking statute. Placing the three judgments side by side reveals this scheme, but a view questioning its consistency is also possible, in that the court's method of review varies according to the form containing the same disposition criteria.

The second interpretation is a reading that the difference in form is substantially reduced in actual review. Supreme Court Decision 99Du5207, while viewing the table attached to the Presidential Decree as delegated legislation, read its amount as a maximum limit and left room to consider individual circumstances, and Supreme Court Decision 2007Du6946, while viewing the criteria of the Order of the Ministry as internal rules, held that a disposition conforming to those criteria should not be hastily found to be a departure from or abuse of discretion. On this reading, both judgments converge in the direction of respecting the criteria while leaving case-by-case weighing.

The third is a reading concerning the scope of the maximum-limit interpretation. The basis of Supreme Court Decision 99Du5207 is the content and purpose of the delegation provision of the parent Act, and the principles prohibiting excessiveness and of equality under the Constitution. Views may differ between reading this broadly as an interpretation extending to monetary criteria in tables attached to Presidential Decrees generally, and reading it narrowly as inapplicable where it is clear from the text or the purpose of the delegation that a fixed sum was intended.

The fourth is a reading concerning the intensity of review of a disposition made in accordance with criteria of an Order of the Ministry. Supreme Court Decision 2007Du6946 held that the disposition should not be regarded as a departure from or abuse of discretion unless the criteria themselves are inconsistent with the Constitution or an Act, or there is no reasonable ground to recognize the disposition conforming to the criteria as manifestly improper. There may be a view reading this as conferring a de facto presumption of lawfulness on dispositions conforming to the criteria, and a view reading it as merely setting the starting point of review while maintaining the principle that the criteria do not bind the court.

The fifth is a reading concerning the effect of violation of the form of delegation. Supreme Court Decision 2010Da72076 denied the effect of delegated legislation not only where the content of an administrative rule exceeds the scope of delegation, but also where it violates the procedures or methods for the exercise of a specific authority prescribed by a higher-ranking statute. This may be read as a strict application of the form requirement, so that even where the content is the same, a different form means no effect; on the other hand, whether that public notice remains as an internal standard of administration in its capacity as an administrative rule, and if it does, what meaning it has in contracts under private law, are matters the Summary of Decision does not directly address.

The sixth is the relationship with Article 21 of the current General Act on Public Administration. This provision stipulates that when an administrative agency makes a disposition involving discretion, it shall fairly weigh the relevant interests and shall not go beyond the scope of discretion. A view is possible that reads this provision as confirming the criterion of judgment presented in 99Du5207 and 2007Du6946 of comparing and weighing the degree of infringement of public interest against the disadvantage suffered by the individual, and another view that reads it as codifying the duty to weigh as an affirmative duty of the administrative agency, thereby creating grounds to treat a defect in the weighing itself as an independent ground of illegality.

What the decisions held

Supreme Court Decision 99Du5207 decided March 9, 2001 held that, although the criteria for disposition of administrative fines in Table 6 of Article 40 of the Enforcement Decree of the former Youth Protection Act, enacted under the delegation of Article 49 (1) and (2) of the former Youth Protection Act, were delegated legislation, the amount of the fine had to be determined by comprehensively considering various factors such as the scale or duration of the violation, the degree of social condemnation, punishment under other Acts, the actor's personal circumstances, and the scale of the unlawful gain, even for violations of the same type, in light of the content and purpose of the delegation provision of the parent Act and the principles prohibiting excessiveness and of equality, and thus "the amount is not a fixed sum but a maximum limit." As to whether a punitive administrative disposition involves a departure from or abuse of discretion, the court held that, by objectively hearing the content of the violation, the public interest purpose to be achieved by the disposition, and all the surrounding circumstances, "the degree of infringement of public interest and the disadvantage to be suffered by the individual as a result of the disposition must be compared and weighed." The dispositive part dismissed the final appeal.

Supreme Court Decision 2007Du6946 decided September 20, 2007 held that "even where the criteria for a punitive administrative disposition are prescribed in the form of an Order of the Ministry, this amounts to no more than establishing internal rules of office procedure for the administrative agency and has no effect of binding the people or the courts externally," and that the lawfulness of a disposition must be determined not only by the disposition criteria but in accordance with the content and purpose of the relevant statutes and subordinate statutes, so that conformity with the criteria does not immediately mean lawfulness. However, unless the criteria themselves are inconsistent with the Constitution or an Act, or there is no reasonable ground to recognize the disposition conforming to the criteria as manifestly improper, "one should not hastily judge that the disposition departed from the scope of discretion or abused discretion." It was held that a disposition which, after giving prior notice of a business suspension of 15 days to a pharmacist for the act of opening and selling drugs in accordance with the administrative disposition criteria in the tables attached to the Enforcement Rule, imposed an administrative fine in lieu of business suspension in accordance with the calculation criteria in the tables attached to the Enforcement Decree, could hardly be regarded as a departure from or abuse of discretion, and the judgment of the court below was reversed and the case remanded to Seoul High Court.

Supreme Court Decision 2010Da72076 decided July 5, 2012 held that the fact that an administrative rule has the effect of delegated legislation within the limits of delegation is exceptionally recognized not on the basis of the general effect of the administrative rule but on the basis of the effect of the statute provision granting authority to supplement the content of statutes and subordinate statutes; that if it exceeds the scope of delegation there is no room to recognize external binding force, and that the same applies where the delegation provision is violated as to specific procedures or methods. Accordingly, it was held that "if, notwithstanding that a higher-ranking statute delegated the prescription of details, etc. to an Enforcement Rule, these were prescribed by a public notice or other administrative rule, that likewise cannot be recognized as having effect as delegated legislation with external binding force." The Standards for Payment of Supervision Fees for Housing Construction Projects, a public notice of the Minister of Construction and Transportation, has not had the effect of delegated legislation since the former Housing Act, which required the standards for payment of supervision fees to be prescribed by Order of the Ministry of Construction and Transportation, came into force; it does not constitute an enforcement order, and Article 2 of the supplementary provisions of the wholly revised Housing Act is not interpreted as intended to preserve its effect. The dispositive part dismissed all the final appeals.

Practical checklist

In which form, among a Presidential Decree, an Order of the Ministry, a public notice, or a directive, are the criteria that served as the grounds for the disposition? If standards in several forms were used together for a single disposition, separate the standard determining the type of sanction from the standard determining the amount, and record the form and effect of each separately.

Which form did the words of delegation in the higher-ranking statute designate? Verify from the original text whether it only said 'as prescribed by the Minister,' or said 'as prescribed by Order of the Ministry' or 'by Presidential Decree,' and if the enabling Act was amended, compare the words of delegation before and after the amendment together with the transitional provisions of the supplementary provisions.

Is the amount in the table attached to the Presidential Decree a fixed sum or a maximum limit? Even if the text of the table appears to be a fixed sum, verify from the disposition records whether it can be read as a maximum limit in light of the purpose of the delegation in the parent Act and the principles prohibiting excessiveness and of equality, and whether the administrative agency considered room to reduce the amount in light of individual circumstances.

If a disposition made in accordance with criteria of an Order of the Ministry is contested, is the assertion that the criteria themselves are inconsistent with the Constitution or an Act, or that the disposition conforming to the criteria is manifestly improper in light of the content of the violation and the purpose of the relevant statutes and subordinate statutes? The materials needed differ according to which of the two branches presented in Supreme Court Decision 2007Du6946 is involved.

Glossary

Delegated legislation: administrative legislation that has the effect of binding the people and the courts externally. Representative are the Presidential Decree under Article 75 and the Order of the Prime Minister and Order of the Ministry under Article 95 of the Constitution, and Supreme Court Decision 99Du5207 viewed the criteria for disposition of administrative fines in the tables attached to the Enforcement Decree of the former Youth Protection Act as delegated legislation.

Rules of office procedure: rules established by an administrative agency as criteria for internally handling its work. Supreme Court Decision 2007Du6946 viewed the sanction disposition criteria in the form of an Order of the Ministry in this way, holding that they have no effect of binding the people or the courts externally.

Maximum limit: the meaning that the amount of the administrative fine stated in the disposition criteria table is not a fixed sum to be imposed as written, but a ceiling within which the amount must be set in consideration of individual circumstances. Supreme Court Decision 99Du5207 adopted this interpretation on the basis of the purpose of the delegation in the parent Act and the principles prohibiting excessiveness and of equality.

Enforcement order: an order by which an administrative authority, in the exercise of its general authority ex officio, prescribes the details necessary to enforce the Act in practice within the scope provided by the Act. Supreme Court Decision 2010Da72076 viewed the Standards for Payment of Supervision Fees, which contain content restricting the freedom of contract of the people and the like, as not falling within this category.

Sources and limitations

The provisions were confirmed against the original texts of the current Article 75 and Article 95 of the Constitution of the Republic of Korea, Article 27 of the Administrative Litigation Act, Article 21 of the General Act on Public Administration, and Article 4 of the Framework Act on Administrative Regulation on the Korea Law Information Center as of October 16, 2026. The Framework Act on Administrative Regulation was retrieved as the version of a partially amended Act scheduled to enter into force on November 13, 2026, so when applying it to a case, the date of entry into force and the time of the conduct must be checked together. The interpuncts in the original text were transcribed using interpuncts of the same meaning.

The judgments were addressed only within the scope of the Holdings, Summary of Decision, and the dispositive part of the judgment texts on the Korea Law Information Center. The full text of the reasoning of the judgments, the judgments of the court below, the specific amounts of the dispositions, and the parties' assertions were not written beyond the scope appearing in the Summary of Decision.

The original texts then in force of Article 49 of the former Youth Protection Act and Table 6 of Article 40 of the Enforcement Decree of the same Act, of the former Pharmaceutical Affairs Act and the relevant tables of the Enforcement Decree and Enforcement Rule of the same Act, of Article 33-6 (6) of the former Housing Construction Promotion Act, and of Article 24 (6) of the former Housing Act were not compared. The content of these provisions was conveyed only to the extent described in the Summary of Decision.

Points left open

Whether the scheme whereby disposition criteria of the same content are delegated legislation when placed in a Presidential Decree and internal rules when placed in an Order of the Ministry will continue to be maintained is an open question. The three judgments each addressed a different form, but no single judgment squarely explained a general principle justifying the differences among forms.

If criteria of an Order of the Ministry do not have external effect, there remains the question whether, when the administrative agency imposes a heavier sanction than the criteria, the person subject to the disposition may assert violation of the criteria itself as a ground of illegality. Whether the criteria have indirect binding force, mediated by the principle of equality or the self-binding of administration, is not directly answered by the Summary of Decision of these three judgments.

Supreme Court Decision 2010Da72076 denied the effect of delegated legislation of a public notice in a civil case seeking damages and other relief. How contracts concluded on the basis of a public notice that has lost its effect, or money already paid, are settled, and how the reliance of a party who followed the public notice is treated, are issues beyond the scope of the Summary of Decision.

Inasmuch as the proviso to Article 4 (2) of the current Framework Act on Administrative Regulation limits the cases in which matters may be prescribed by public notice, etc., how the question whether the matter constitutes a technical or minor matter is reflected in the determination of the effect of the public notice, even where an Act delegates the matter to a public notice, awaits a separate determination.

When to reconsider

If the provisions of the General Act on Public Administration concerning the criteria for the exercise of discretion or sanction dispositions, the principle of legality of regulation in Article 4 of the Framework Act on Administrative Regulation, or Article 27 of the Administrative Litigation Act are amended, the interpretive branches of this article will be compared again. In particular, after the amended version of the Framework Act on Administrative Regulation scheduled to enter into force on November 13, 2026 takes effect, the original text of Article 4 will be re-verified.

If the Supreme Court renders new determinations concerning the external effect of disposition criteria in the form of an Order of the Ministry, the character of the amounts in the tables attached to a Presidential Decree, or the effect of a public notice that violates the form of delegation, what the court held will be added to the 'what the court held' item within the scope of the Holdings and Summary of Decision, and the relationship with the three judgments will be rewritten.

Statutes referred to

• 대한민국헌법 제75조, 제95조
• 행정소송법 제27조
• 행정기본법 제21조
• 행정규제기본법 제4조

Decisions referred to

• 대법원 2001. 3. 9. 선고 99두5207 판결 · Decision ledger
• 대법원 2007. 9. 20. 선고 2007두6946 판결 · Decision ledger
• 대법원 2012. 7. 5. 선고 2010다72076 판결 · Decision ledger

Verification status

The cited provisions (Articles 75 and 95 of the Constitution of the Republic of Korea, Article 27 of the Administrative Litigation Act, Article 21 of the General Act on Public Administration, and Article 4 of the Framework Act on Administrative Regulation) were compared against the current original texts on the Korea Law Information Center as of October 16, 2026. The cited judgments (Supreme Court Decision 99Du5207 decided March 9, 2001, Supreme Court Decision 2007Du6946 decided September 20, 2007, and Supreme Court Decision 2010Da72076 decided July 5, 2012) were compared against the Holdings, Summary of Decision, and the dispositive part of the judgment texts on the Korea Law Information Center. The original texts then in force of the former Youth Protection statutes, the former Pharmaceutical Affairs statutes, the former Housing Construction Promotion Act, and the former Housing Act were not compared.