영미에서의 공익개념과 공익의 법문제화

Abstract

Like other value concepts of mankind, public interest has shown a broad range of argumentations. However, when we focus on the ruling ideas of public interest in our society, we recognize that understanding the concept of public interest in the Republic of Korea has been affected by that of Anglo-Americans. For this reason, the Anglo-American concept of public interest is an important issue not only in the U.K. and the U.S.A. but also in our country. Traditionally, Benthamite's interest theories of public interest have been dominant in Anglo-American societies even though there has been criticism from the common interest theorists, emergent interest theorists and the unitary interest theorists, the ruling ideas of public interest in the Anglo-American world have been generated by Benthamite's utilitarian perspectives. Recently, these ideas have greatly influenced the paradigm shift of public management and public law concepts in the U.K., the U.S.A. and our country. For instance, the Government of R.O.K. shares in the values and methodologies of the deregulatory agenda of Reagan era, Clinton's attempt to ‘reinvent government’ and Bush's return to deregulatory agenda. However, these modern forms of Benthamite utilitarianism have been condemned as serving only the dominant interest groups in society due to the absence of identifiable normative content which can defend or advance fundamental democratic values such as citizenship, political deliberation and political accountability. Because of this absence, it has been hard to resolve social conflicts and bipolarization, which are all very urgent and constant problems. Under these circumstances, we should not adopt the preponderance theories of public interest. Unitary conceptions of public interest may not be appropriate as well in a pluralistic society like ours. Instead, we should pay close attention to the meaningfulness of the civic republican concept of public interest in Anglo-American learned circles. Even though our civil society and public administration are different from those of the U. K. and the U.S.A., the perspective of Anglo-American civic republican scholars regarding the problematics of public interest is very similar to ours. For example, Professor Mike Feintuck in the U.K. commented, “the ‘public interest’ is no longer an empty vessel, or an aspect of spoils to be claimed by society's dominant groups, nor is too fluid or susceptible to change but instead reflects constant value of equality of citizenship within a democratic political community.” Under the above-mentioned premise, I want to suggest some of the ideas from the civic republican scholars in the U.S.A. and the U.K. for the required paradigm shift of our administrative law model. Firstly, we have to establish interpretive principles to be applied to our administrative circumstances as the core values of our legal system. The interpretive principles will be used as implied terms in interpreting statutes. Secondly, we need to transform the Administrative Procedure Act to induce public decision-making through public participation and deliberation in resolving conflicting public issues. Thirdly, we should shift the focus of judicial review from reviewing content values to reviewing legitimacy of decision-making process in order to confirm adequate deliberative process and input of relevant public opinion in administrative decision-making. Fourthly, we must cautiously try to expand the sphere of administrative law to the public activities in the third sector in response to the New Governance associated with private partnership in the public management and public decision-making.