영업허가와 기업특허 구별론에 대한 비판적 검토

Abstract

The Permit(“Genehmigung” in German) and License(“Konzession”, “Verleihung” in German) system for business is one of the methods of restricting the constitutional right of Freedom of Business, and there is no need to distinguish between Permit and License as they are the same in that they restore the fundamental right. Furthermore, while the conventional wisdom is that monopolies are granted by Licenses, they should be viewed as a direct effect of the law. This is consistent with the fact that in Germany today, Permits and Licenses are generally not seen as contrasting concepts.
 In the general case, the underlying law is important for determining mandatory and discretionary acts, but since Permits (including Licenses) are restrictions on fundamental rights, so according to Principle of Rule of Law the law cannot define discretionary acts that can be rejected even though the permission requirements are met. However, given the need to attach conditions to Permits, laws that allow for discretion are permissible.
 The conventional view is that an Exceptional Permit (or “Exceptional Approval”) is a discretionary act. However, it is reasonable to assume that, although it is a mandatory act in principle, it may be made discretionary by law by exception.