행정재량과 법원리 ― 서론적 고찰 ―

Discretion is a well-known concept in administrative law, but its essence is not well known. Most of the literature in the liberal perspective focuses on discretionary control rather than on the nature of discretion. As a result, the negative effects of wrongful discretion are emphasized rather than the positive aspects of discretion. Meanwhile, general principles of administrative law, comprised of the principle of equality, the principle of estoppel, etc, are widely used as a means of demonstrating the illegality of discretionary exercises in practice. In other words, the general principle of administrative law functions a controlling means of illegal discretionary activities. Discretion results in limited judicial review, but denying discretion does not always yield good results. Discretion is a concept designed for rational decision making in administration. From this point of view, it is important to provide a reasonable guideline to follow when the administration exercises its discretion. In order to do this, it is necessary to understand the general principle of administrative law as not only a measure of judicial review on discretionary exercise but also a standard for making value weighing possible for actions requiring value weighing. Here, the act that requires value weighing is often a discretionary act, but it may be a bounded act. In the end, the judicial review of discretionary behavior and the general principle of administrative law are not in the essential relationship. This separate understanding is also important in understanding the nature of discretionary behavior as well as in understanding what the general principle of administrative law perform in the system of administrative law. However, this study is only an introductory attempt, and a deeper analysis on administrative discretion and general principles of administrative law will continue in future research.