사회환경 변화에 따른 행정재량의 확대와 법적 대응

초록

The administrative discretion over legislative power seeks to divide roles between the legislative and administrative branches in the process of law making and law formation. It is expected that the extent and scope of this will expand in the future due to rapid changes in society and the specialized and technical nature of the object of legal regulation. In order to strengthen appropriate judicial control over the continuously expanding the administrative discretion over legislative power, it is necessary to appropriately organize and improve the format and method of judicial review. The administrative discretion over judicial power is a division of functions between the courts and the administration in the application of law. It may be assumed that the administrative agency’s judgment ability is superior to that of the court in matters of technical expertise. From the perspective of the principle, the rule of law, it would be desirable to conduct a comprehensive review to the extent possible, except for areas where judicial review is limited due to technical expertise. In cases where it is difficult to adopt this method of judicial review, it is necessary to expand or strengthen the judicial review method through procedural control or judgment process control. In the Korean case law reviewed in this academic paper, the logical structure of the illegality review adopts a two-step review theory for judging the illegality of administrative dispositions based on the interpretation standards by administrative agency. This indirectly suggests the possibility that administrative interpretation criteria can become a judicial norm, but considering the nature of administrative interpretation criteria and their systematic position in the administrative process, there are many questions which is not clear in the legal aspect. As a result, the phenomenon of relativization of interpretation criteria and discretionary criteria is occurring, and a review of this will be set as a future task.

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