방송통신 규제기관의 최종결정권과 사법심사 -독일 연방행정법원'(BVerwG)의 규제재량을 중심으로 -

A normal structure of a norm consists of two sides: If the necessary legal conditions of the norm is fulfilled, then the legal effect of that norm is actuated. Given this general system of norms, i.e. classic dichotomy, according the traditional theory, the administrative discretion exists only in the legal effect of the norm. Although several undetermined concept(unbestimmter Begriff) are used by lawmakers on the side of the legal conditions of norm, all decisions made by the regulatory agencies are subject to full judicial review. In other words, there is no administrative discretion on the side of the legal requirement. In recent several decisions rendered by the Federal Administrative Court of Germany, regulatory discretion is accepted on the field of the regulation of telecommunications industry. According to the Federal Administrative Court of Germany, the scope of judicial review is limited to control appreciation of values by regulatory agency, when it is needed to respect decisions by Bundesnetzagentur, i.e. communications agency in Germany, due to its predominant technical knowledge and professionalism. Specially, the regulation of interconnection, which has been the key factor of the competition and function in telecommunications market, was subject to judicial review related to regulatory discretion. This article deals with the existence, scope and legal consequences as well as the impacts of regulatory discretion on the administrative law dogmatics.