행정심판의 기능에 있어서의 ‘부당성’심사의 의의 ― 부당성 심사활용을 위한 시론 ―

While Administrative Appeals System in Korea simultaneously possesses both remedy of violation of rights for its citizens and due operation of administration, there is growing opinion that it places too much weight on the former. Thus, in order to keep the balance between the two, it is necessary, more than anything else, to look into what meaning ‘self-control’ of the administration has in the appeals function called due operation of administration and to review what meaning ‘injustice evaluation’ has in ‘self-control.’ That is, today when the aspects of specialty, technicality, independence and fairness of administrative appeals are viewed as significant, this essay is a reflection on such questions as “What does ‘self-control’ in administration mean?”, “Can the judgements of the Administrative Appeals Committee which has strong independence as a 3rd party be rightly considered as ‘self-control’ in the true sense of the word?” and “Is Administrative Appeals Committee required to have different judgement ability from that of the court when they evaluate discretion?” and, in another perspective, “Is the concept ‘injustice’ distinguishable from ‘illegality’?” and “Are these two concepts different either inquality or inquantity?, or, Does injustice mean the part which cannot be judged by the court or just the part which does not reach the degree of ‘illegality’?” Judgement on injustice ultimately means judgement on public interest and, here, disputes may arise on what we should choose among conflicting values, which procedures and means we should choose and who should make judgments. In additions, these questions need to be considered in constituting appeals institutions and drawing out the means of evaluation.