기속재량 개념의 법리와 그 문제점

Abstract

Control over the acts of discretion is one of the long-standing challenges faced by the administrative law community. Control over the acts of discretion begins with the distinction between binding acts and acts of discretion. However, the relevant precedents are aggravating the difficulty of control over the acts of discretion by recognizing the concept of restricted discretion as a third area that is neither binding acts nor acts of discretion. According to the theory of precedents, acts of restricted discretion are binding acts in principle, but in exceptional cases, they refer to acts that can refuse approval or acceptance of reports when there is a need for important public interests.
 However, the ‘need for important public interests’ referred to in restricted discretion corresponds to a representative amorphous concept. However, precedents understand the interpretation and application of amorphous concepts as a matter of discretion. Then, it is logical to understand restricted discretion as acts of discretion in principle. Nevertheless, the precedents commit a contradiction in viewing restricted discretion as binding acts. In addition, the concept of restricted discretion causes numerous contradictions and incongruities with existing administrative law theories, such as violation of the principle of statutory reservation, avoidance of the obligation to set disposition standards under the Administrative Procedure Act, deformation of the judgment under circumstances, and contradictions with the withdrawal system and reporting system.
 In light of the above, the concept of restricted discretion should be abolished in accordance with principle of the rule of law. Restricted discretion should be considered to be established only when individual laws expressly stipulate that refusal disposition can be made due to the need for important public interests. In addition, it is reasonable to say that at the moment such a regulation is made in an individual law, the relevant acts already fall under acts of discretion in terms of the intent and purpose of the regulation.