법학전문대학원 설치인가관련 판결의 행정법적 검토 (제척사유의 해석 및 위임입법권과 재량권의 한계, 사정판결의 판단기준) - 대법원 2009.12.10선고 2009두8359판결 및 2009.12.10.선고 2009두14606 판결을 중심으로1)

Abstract

I explore on the problem of standing, interpretation of expulsive cause in the competitors' litigation and decisional criteria of public welfare in judicial decision after due consideration of circumstances(sajeungpangeyul)in this article. I evaluated the Supreme Court's two decisions of permitrefusal of law school. In theses cases the Supreme Court has interpreted and applied art.13 and art.10 of Law school Act of expulsive cause very formally. The Supreme Court held that defendant's administrative disposition(action) is not invalid but revocable. I think that the defendant's action is capable of invalidity because of unconstitutionality (disposition based on unconstitutional legislation of art. 5 of law school act's enforcement ordinance) and illegality by misapplication of above-mentioned Act. It has to be corrected in another cases in the near future. Our Administrative Litigation Act has provided on judicial decision after due consideration of circumstances at Article 28. The notion of ‘public welfare’ which is the requirement of judicial decision after due consideration of circumstances is uncertain, abstract, vague and comprehensive. So the judiciary hasn't defined it directly but has explained it indirectly in lots of separate cases. Therefore the judiciary is possible to interpret and apply it arbitrarily to a case. It is needed to establish reasonable and concrete criteria to apply public welfare to a case. In these cases I think judicial decision after due consideration of circumstances is inevitable for stable establishment of new law school system in these cases. But I guess we have been discovered some adverse effects of the system of judicial decision after due consideration of circumstances. Finally We have discovered some adverse effects of the system of judicial decision after due consideration of circumstances(sajeungpangeyul). For that reason it has to be gradually disappeared by utilizing alternatives as like temporary litigation system and preventing each case from accumulation of facts over the illegal administrative actions. In conclusion, according to above-mentioned reasons I think the Supreme Court's two law school-related decisions are not proper. So it should be corrected later in other similar cases.