행정법에서 ‘비용’과 ‘가치’ 재검토 - 경제적 효율성 비중에서 민주성 및 보장책임성 조화 비중으로 -

We can classify the stage of the development of the country which can be the foundation in Administrative Law Theory and Practice as from ‘Police State’ (Polizeistaat), via ‘Welfare State’ (Leistungsstaat), to the third Road so called ‘Guarantee State’ (Steuerungsstaat). However the big challenging task was how to reduce the enormous costs which has occurred in the course of the movement from ‘Police State’ to ‘Welfare State’ for keeping the increasing administrative organization and the quantitative and qualitative expanding administrative actions. ‘New Public Management’(NPM) from UK and USA and ‘Neues Steuerungsmodell’(NSM) from Germany has emerged as the solution for this task. Government has used Privatization and delegated many burdens to many private companies. Government has succeeded in maximization the Profit with minimum Costs through this Methodology. The Cost-Benefit Analysis has used for the Administrative Decision for appliance of NPM and NSM mainly in view of the Economic Efficiency. But Government had approached so closely to the Economical View which input costs and get benefits even in the Administrative Law Theory and Practice. As a result, Government had so often neglected to communicate with citizen and had not considered the Procedure or Process which draw the Consensus with people. Economical Efficiency was priority than Democracy and Liability in the Public Administrative Decisions. But that was not the Approach to the Pubic Decision that people really wants in Democratic Society and Guarantee State. Government had tried to focus on the pursuit of the lowest cost through privatization. Police was also the same idea which spend budget mainly on maintaining public order and does not expand to other areas. Even police had tried to pass the cost to citizen and wanted privatization. Government still lack of idea about Modern-type Risks which can not control, for example, MV Sewol sinking accident, expanding MERS events, the nuclear power plant explosion caused by Tsunami, so many Hacking cases on infrastructure facilities. So Government didn't like to input budget and spend money to invisible output such as social security and environment. However this approach has led to the Government Failure and the Market Failure aiso in the Administrative Law Theory and Practice. Now is the time to correct and modify the Administrative Law Theory and Practice of the Government from a new perspective. We should follow and join to the Global Flow of POST-NPM in the Administrative Law Theory and Practice. The important aspect of this view is to shift proportion in the Administrative Law Theory and Practice from the Economic Efficiency to Harmony with Democracy and Accountability. After this shift of view Government take into account of Public Interest and balance with Private Ineterest. Recently Many countries including UK, USA, Germany, France etc. are joining to Global Flow which are acknowledge Government's Accountability to ensure and guarantee citizen's safety and security of life, body and property. We can call this State as ‘Guarantee State’. Government should take effort to set up and expand Guarantee Costs, install Guarantee Department, furnish and repair security equipment in order to achieve the challenge which input Costs for Liability and output Guarantee Value. Government can be successful to reduce Guarantee Costs by using ICT which is instrument in E-Gov. And Government can administrate with the method of ‘Public-Private-Partnership’(PPP) which is used in Cooperative State. With PPP, Governmernts can promote Democracy and reduce Costs. Furthermore public enterprises also should take some important role to provide Pubic Service and distribute Public Goods with fairness and efficiency. So the Role between public enterprise and privatization should be distributed in harmony with each other. Government can overcome the limitation of Cost-Benefit Analysis with this shift of view point and methods. This effort to modify and correct Cost and Benefit and to change Administrative Law Theory and Practice is consistent with the Justice which was also expressed in Rawl's Justice, Habermas' Theory of Communicative Action, Nussbaum's modified Economic Value, Hoffmann-Riem‘s Guarantee State. In conclusion, the change and innovation in Administrative Law Theory and Practice is started when Government shift proportion from the Economic Efficiency to Harmony with Democracy and Accountability and approach to Public Interest.