신뢰보호 원칙의 적용요건 - 공적 견해표명의 의미를 중심으로

In the early 2000s, the Supreme Court laid out five requirements for the application of the principle of protection of legitimate expectation. These requirements have been repeatedly cited in many administrative cases thus far. Of these, “public representation” constitutes the first step toward applying the doctrine of protecting legitimate expectations. In fact, in a significant number of those cases in which a violation of the doctrine of protecting legitimate expectation was alleged, the Supreme Court refused to accept the allegations on grounds of lack of administrative agencies’ public representation. As such, public representation is considered to be the first step toward making determination on the doctrine of protecting legitimate expectations, as well as the most critical requirement. However, not a few difficulties arise in practice, because which of the many and diverse actions arising between an administrative agency and a private citizen may be considered a public representation can only be determined based on quite an abstract and fluid criterion of whether the given action may be trusted by private citizen. This paper is intended to further concretize the meaning of public representation using two methodologies, namely, comparative legal analysis and typology of precedents. First, this paper compares the methods of determination adopted in the UK, Germany, and France. All three countries strictly distinguish between cases where administrative agencies’ actions generate legal effect from other cases, and provide a strong protection of legitimate expectations for the former, while providing only a limited protection for the latter. Their specific means of doing so slightly differ. In the UK, protection of legitimate expectation is recognized in only a minority of cases because: (a) the law requires administrative agencies to make its public representation clear and concrete, and to give notice to private citizens on all relevant facts, thereby allowing for a broad recognition of causes attributable to private citizens; and (b) the court is mostly deferential to administrative agency determinations on the weighing and balancing of public interest and legitimate expectation interest. Germany has the confirmation system under its Administrative Procedure Act. This means that the legally binding force of an administrative action is recognized in the event an administrative agency promised to enforce an administrative action in compliance with certain requirements, such as documentary format. However, only state compensation liability would be at issue in the event the given administrative action does not constitute a confirmation. Likewise, in France, only state compensation liability becomes an issue as a matter of principle, except that the binding force of a certain representation is recognized in written statutes in the fields of taxation and urban planning. Next, this paper reviews the Supreme Court’s precedents on public representation by classifying them into a coherent typology. In so doing, the following criteria were identified: (a) where multiple approvals and permissions were necessary for a single project, and it was alleged that there was a public representation to the effect that the grant of one of the approvals/permissions would lead to other, related approvals/permissions, the allegations were mostly rejected; (b) notwithstanding the Supreme Court’s stance not to be restrained by formal division of authority, the Court does not necessarily recognize the actions by separate administrative agencies as public representation; (c) in the event there is certain formal or procedural requirements, public representation is less likely to be recognized for any administrative action not in compliance, and legitimate expectation is less likely to be found where the relevant party is more likely to be aware of such formal or procedural requirements; (d) the more general the content of a representation by an administrative agency, the harder it is to be recognized as a public representation; (e) by the same token, the more specific to a given party and issue, the more likely the representation is to be recognized as a public representation; and (f) it makes it harder for legitimate expectation to be recognized when there are conditions attached to the administrative agency’s representation or when the representation is limited. It appears that judgments on public representation are quite strict both for the Korean Supreme Court and for other countries. This seems reasonable because investment (i.e., action based on legitimate expectation) before the official administrative action with legal effect should, in principle, be made under the investors’ own responsibility, and the attendant risks may not be transferred to administrative agencies (and ultimately to community members). The only proposal to be made here is to appropriately revise the expression of the general theory of the precedents, because as it stands, it tends to leave a misguided impression that protection of legitimate expectation may be broadly acknowledged.