행정판례를 통해 본 공익의 행정법적 함의와 기능

This paper aims to derive the implications and functions of the public interest, from the viewpoint of administrative law, in the administrative precedents inductively, and to propose the development direction of precedents. The public interest is an ideological foundation of the administrative law. Even, it has legal binding force as the grounds justifying executive power or reason controling one. Therefore, it is necessary to define exactly the concept of public interest. However, judges have delineated public interest as “interest for public” or "interest for unspecified masses" in some cases, but have not defined it precisely. The public interest is the fundamental basis for the exercise of executive power, which is not the public interest itself, but is exercised in accordance with the statutable authorization in principle of legal basis(Vorbehalt des Gesetzes) However, the precedent has recognized that the discretion of dismissal and withdrawal can be exercised without the basis of explicit statute. These judgments do not present the argument, but seem to be based on the limitations of legislation, the interpretation of the relevant statutes, and the necessity of reality. They have recognized widely dismissal discretion, but it is reasonable to admit that exceptionally only when it is necessary. The withdrawal of a profitable administrative act should not be permitted in principle, and its reason and basis should be specified in the laws. The precedents declare principle of public interest, which is regulative principle against the disciplinary action and sanction. Furthermore they should announce principle of public interest as the general principle of administrative law applicable to all exercises of executive power. In addition, recent precedents have admitted the prohibition of abusing authority, and it should be also declared one of the general principles of administrative law. Now they should clarify that the an act which agencies use authorities not for own purposes but for another is a kind of the prohibition of abusing authority. The court precedents have admitted need of the fair comparison of interests not only between public interest and private interest, but also between public interests conflicted. As not being easy to control the value measurement and the value comparison, it is important to control the process of the fair comparison of interests, for the systematization and objectivization of it. The court precedents have expanded the legal benefit of plaintiffs in the way of expanding the protective nature of private interest under the applicable provisions and relevant provisions, which are protective norms, for administrative measures. In addition, they ask the protective nature of private interest on the duty as a requirement of state compensation liability. However, it is reasonable to recognize the relief of right through an appeal litigation or state compensation without limitation in the case of infringing the private right by the authority of the executive branch from the viewpoint of securing the unity of the law.