법률의 효력 범위를 행정규칙으로써 제한할 수 있는지 - ｢1회용 컵 보증금대상사업자 지정 및 처리지원금 단가 고시｣의 문제점을 중심으로

Whether the scope of effect of the law can be limited by administrative rules : Focusing on the problems of the ‘Notification of the Designation of Businesses Subject to the Deposit for Disposable Cups and the Unit Price of Processing Subsidies’

The National Assembly introduced a disposable cup deposit on June 9, 2020, as Article 15-2 of the Act On The Promotion Of Saving And Recycling Of Rescources(Act on Recycling) was amended to improve the reality that environmental pollution and waste of resources are becoming serious due to the improper disposal of disposable cups while the use of disposable cups is increasing rapidly due to the increase in coffee consumption through coffee shops. In order to prepare for the above system, the National Assembly made the above revised law take effect two years after the date of promulgation. However, the Minister of Environment enacted the Notification of the Designation of Businesses Subject to the Deposit for Disposable Cups and the Unit Price of Processing Subsidies(Notification of the Dispocable Cups) on December 2, 2022, which should be enacted and implemented on June 9, 2022, in accordance with Article 15-2 (1) 2 of the Resource Recycling Act and Article 17 (3) of the Enforcement Decree of the same Act. In addition, the Minister of Environment classified the application of the notice into regions through Article 2 of the Addenda of the Notification of the Dispocable Cups, allowing the implementation of most regions of the country to be postponed indefinitely. When administrative legislation is used to limit the scope of the implementation and application of a law, an explicit legal basis is required in accordance with principles such as the Principle of legal reservation. However, Article 2 of the Addenda of the Notification of the Dispocable Cups has provisions that substantially limit the effectiveness of the higher laws, even though there is no legal basis for them. Therefore, Article 2 of the Addenda of the Notification of the Dispocable Cups is an unconstitutional, illegal notice and invalid regulation with no external or internal effect.