행정재량과 절차적 정당성의 모색― 미국에서의 이론과 법제도를 중심으로 ―

The traditional model of American administrative law has been centrally concerned with restricting administrative actions to those authorized by legislative directives. The theories based on the traditional model thus focused on the control over agency discretion through the procedural requirements in Congress's legislation and Judicial review. In this context, the dominant concern was the legitimacy of the exercise of such decisive adjudicatory powers and extensive lawmaking powers by regulatory agencies. Two major theories of democratic legitimacy have influenced on development of administrative law in relation to such issues. One is majoritarianism and the other is trustee paradigm. Under majoritarianism, the question of democratic legitimacy becomes a principal-agent question of whether government officials demonstrate fidelity to the majority's will. To address this principal-agent question, "interest group representation" model in administrative law elevated popular preferences to a primary role in the agency decision-making process. In contrast to the majoritarian conception of democratic legitimacy, legal theorists embracing republican norms envision government decision-making as a process of "reflective deliberation on the common good". Under the trustee paradigm, government officials should act as stewards for the people and exercise their discretion consistent with Congress's legislative directives. Like this, this theory find legitimacy within the agency decision-making process. However, bureaucrats often fell subject to self-interest, corruption, and arbitrariness. In response to these concerns, scholars turned to external control over the administrative decisions by the President, and the courts. Also, they emphasized the importance of procedural requirements designed to promote agencies' adherence to legislative directives. The three laws, Federal Advisory Committee Act, Government in the Sunshine Act, and Negotiated Rulemaking Act are the examples of laws which provides for the broad and balanced participatory procedure in agency decision-making process. On the other hand, the term "governance" has been adopted in accordance with the general debate on governance as a new form or even substitute of the traditional governance. The governance concepts focus on bottom-up participation with involvement of several stakeholders. In this context, several administrative law scholars propose a normative model of collaborative governance as an alternative to the traditional models in administrative law. A collaborative governance model in administrative law is characterized by the broad and meaningful participation, and collaboration with the public. These characteristics can support governmental legitimacy. Finally, it is clear that administrative procedures help ensure the legitimacy of agency's discretionary action. Nevertheless, scholars have concerned that it can prevent the administrative state from performing the tasks assigned to it. Rather, administrative procedures should afford democratic legitimation to agency actions without causing undue harm to administrative efficiency.