行政判例 30年의 回顧와 展望 - 行政法總論 I

Abstract

This article examines the development of administrative precedent over 30 years on several important topics in the Administrative Law Generals and presents the developmental challenges and the direction in the future. Administrative precedents have greatly evolved quantitatively and qualitatively over the last 30 years. However, administrative precedents have had a loophole in it, when we are retrospective. That is, review of the theory underlying the precedent was not enough, and there were some problems in consistency between precedents and theory. Still now, the parts that the administrative precedents are empty are not rare. The court should accept indirect binding force of discretionary criterion by the medium of equality, as legal theory has been insisted consistently. Executive power is to abandon the attempt setting up legal orders instead of discretionary criterion for cases needing that, and they should make rules in the form of administrative rules. The control to nonuse and nonclaim of discretions is to be strengthened. 'Bound discretion' should be legislated provisions written by law maker basically, recognition of 'bound discretion' interpreted in the cases should be exception, when the intention of legislator was inferred very reasonably. 'Declaration requiring acceptance' should be distinguished from self-completed declaration and license, and recognized by its own action. Additionally, it is proper to use term of 'declaration having acceptance' instead of 'declaration requiring acceptance', and to abolish distinction between franchise and license. Academic research over defect succession and binding force, effect of cancellation of the decision based on laws violating Constitution etc. is required in-depth in the future. Now, it is time to have an interest in improving the quality of administrative precedent. For the development of the administrative precedent, the administrative court should enhance its expertise. Legal theory on issues including formation and modification of precedents should be studied preemptively. In order that, academic sector and practical sector should be exchanged and cooperated more closely by like 'administrative precedent research association'. Vestiges of olden days in the legal theory and precedent should be cleared. Moreover, resonable systematic theory of administrative law and administrative precedent should be made in accord with the our national identity and tradition.