利益衡量의 입장에서 바라본 행정법: 不確定槪念

Several issues of the administrative law, for example, amorphous concepts, administrative discretion and public right, have been dealt with for a long time They are mainly related with protection of property and liberty. State seeks to realize the fundamental rights as much as possible. However, limited resources often cause conflicts between fundamental rights. State's limited capacity of realizing all fundamental rights which the constitutional law enumerates forces itself to make lists of them according to priority. Interests-balance is required for prioritizing fundamental rights. As a society has changed, new roles of governments should be considered. Especially the new role or function of the administrative government should be considered and proposed. Therefore, this paper focuses on ‘legal effects or enforce of amorphous concept’ and ‘discretion’ in the administrative law. Stressing that the legislative, National Assembly, should keep an authority to establish general standards for interests-balance, this paper focuses on the legislative's limited capacity of providing one-fit-all standard. As a result, the legislative inevitably uses amorphous concepts, which could not have predictability and clarity. These concept s could protect only property and liberty. Therefore, as long as the legislative is intended to delegate its legislative authority to the executive, the amorphous concepts should be allowed to have the effect of the law. On the other hand, the amorphous concepts also must be subject to judicial review. Only when the decision of a court could outweigh that of an agency, the latter could be illegal. Amorphous concepts are results of ideological disputes among liberty, property, equity, and environmental interests. Therefore, when the executive enforces the law with amorphous concepts, it should identify which fundamental right National Assembly intended to prioritize.