‘기속재량’의 법리에 대한 재고(再考)

Abstract

In the past, an act of discretion by an administrative agency was perceived to be within an inherent realm of public administration and was excluded from judicial control of a court. A theory of restricted discretion emerged in the Weimar era of Germany, which reduces the scope of administrative discretion not subject to judicial review. Practical benefit of recognizing the theory of restricted discretion decreased significantly since a discretionary act of an administrative agency nowadays may be subjected to judicial review. However, the Supreme Court still holds onto the theory of restricted discretion in a substantial number of decisions. The problem is that the Supreme Court very broadly recognizes acts of restricted discretion in specific cases through judicial interpretation, without clarifying the concept and the ground of restricted discretion, or the basis of the judgement, and is inconsistent in its legal nature and the scope of the application. According to precedents, even if all the requirements for administrative permission have been met, an administrative agency may still refuse approval on the grounds that such refusal is necessary for important public interests. Such legal grounds must certainly be reconsidered, since basic rights of citizens may be restricted without explicitly prescribed regulations, and a risk arises that arbitrary administration may result therefrom. An idea of public interests, being intrinsically vague and abstract, may have multiple interpretations. Therefore, if public interests are to be achieved via the theory of restricted discretion, it should be achieved not through judicial interpretations, but by legislation and other measures, as such measures will comply with the principle of public administration based on the rule of law.