공익의 법문제화

Abstract

The concept of public interest has been a much frequented topic, and has been examined from a range of different perspectives. Academic discourse is based not only on legal views but also on philosophical, political, economic views. And these multi-disciplinary and interdisciplinary studies have advanced the legal concept of public interest. Even in the jurisprudence world, there is a wide range of views on the concept of public interest. In legal philosophy, understanding the relationship between a society and individuals as well as restricting individual rights in the light of the public interest is very important issue. Even in the field of private law, background knowledge of the concept of public interest is a norm in interpreting private contracts. Moreover, the concept of public interest has become a core concept in administrative law theories (Rechtsdogmatik). I have considered public interest theories in the field of administrative law as the Meta-Administrative law theories. This is why I have made efforts to understand the concept in a more relevant way in administrative law during my tenure of professorship. The concept of public interest is a value concept, having many contentions around it. For example, whose interest is the public interest? Who should decide the public interest? Are public interest concepts in many societal spheres different from the state interest? Will we be able to find the normative concept of public interest and follow it or should we make choices based on our preferences? These are the questions that I had in my mind and in order to answer them, we should first look at historical development of the concept. Until the Korean Civil Uprising of 1987 and following democratization of the nation, the public interest had been an ideological concept to justify governmental activities rather than a legal concept that requires reasoning. However, subsequently, small group identities have spread among the Korean people in response to the development of democracy. There has been no unitary understanding of the public interest concept since then. Under the circumstances, lawyers should analyze the concept of public interest in their legal reasoning. Also, public interest has become a legal topos and a general principle of administrative law in deciding legitimacy of administrative actions. Therefore, argumentation of the public interest is a problem of not only the Administration but also the Legislature and the Judiciary. The legislature has to prescribe legislative clauses in a concrete way in terms of the concept of public interest. It should prepare a standard for balancing conflicting interests in confirming the public interest. Also, it should design the process of confirming public interests as a justifying procedure. The Judiciary should change the process of confirming public interests as a justifying procedure as well. It needs to shift its reviewing points from content legitimacy to procedural legitimacy in decision-making process. Moreover, it should analyze multi-dimensional mechanisms of interests in terms of confirming relevant public interests. Finally, it should systematize standards for balancing conflicting interests. The paradigm shift of public administration is an on-going process. 'Deregulation', 'reinventing government' and 'outsourcing' have been changing the process of public decision-making. However, in the process, only the efficiency and utility factors are being emphasized while democratic values, fundamental human rights and rule of law are sometimes left out. We have to develop more relevant legal argument based on the concept of public interest in order to protect the basic values of public law. I hope today's discourse will contribute to the legal argumentation of the public interest and the effective resolution of contemporary interest conflicts.