法解釋을 통한 適法한 行政節次原理의 근거 지움과 規範力 -검정 역사교과서 수정명령 제도의 운영을 글감으로-

The Supreme Court (S.C.) of Korea has canceled the Ministry of Education’s modification order which requires to amend the contents of the high school history textbook. The S.C. simply decides that the order deviated ‘procedural legality’ without judging whether it satisfied substantial legality or not. The problem, however, is no explicit procedural rules exist nor literally interpretation could possibly been drawn against the modification order of the screened textbooks. Despite the nonexistence of explicit procedural rules, the S.C. says that if “the modification brings about a substantial alteration of the contents, it is same to take a new screening procedure” that “the modification order should also go through processes corresponding to that of the Curriculum Books Deliberation Committee’s consideration” based on “the purpose of the textbook screening system that emphasizes autonomy, professionality, political impartiality of education and the curriculum books. Such an administrative textbook screening or certification should be done by a separate and impartial committee. And the committee should ensure to undergo a procedural deliberation that a textbook modification order scrutinized throughout sufficient procedures.” While consenting the S.C. decision, the author highlights how the S.C. has considered ‘procedural legality’ in its reasoning and examines the function of the ‘procedural due process’-as one of the constitutional principle-by individual cases. The author conclusively theorizes that constitutional principles, such as legitimate or appropriate principles in administrative proceedings, should be construed as fundamental legal principles, while constitutional balancing test as a legal interpretation principle can be exceptionally applied when necessary for the legislative or administrative control, like this study shows in case of political impartiality of education. The author also argues that the balancing test is analogous to the principles applied in Mathews v. Eldrige (424 U.S. 319 (1976)).