Finding a model of judicial review for administration: implications from the Chevron case for separation of powers in South Korea

Abstract

Although there are some disparities in regards to the structure and role of judicial review of administrative actions, the Korean government shares many characteristics with that of the United States and thus may learn from an American experience. From the perspective of public administration, this study investigates the judicial review of administrative actions in Korea by looking into its performance under the separation of powers and double-court system. Because the 1984 Chevron decision, a landmark of US judicial deference, highlighted the relation between administration and legislature, its principle has some applicability to Korean judicial review in resolving recently developed president-legislature conflict. The decision promulgates a two-step criterion for administrative discretion, which asks whether the legislative intent is clear and then whether the delegated discretion is ‘reasonable’. It may encourage administrators to change in three ways: to break up the doctrine of stare decisis, to engage in ethical discourse over constitutional values, and to play the role of guardians of the Constitution.