수익적 행정처분의 거부사유인 ‘중대한 공익상 필요’에 관한 연구

Many Supreme Court opinions determined that administrative agencies may refuse to issue profitable dispositions without an explicit basis under legislation when “serious public interest” is required, even if the requirements and standards under legislation for the issuance of profitable dispositions are met. While each of these Supreme Court opinions was intended to seek a reasonable resolution in individual cases, the use of abstract conceptual tool such as “serious public interest need” resulted in a tendency to easily generalize and expand application in the Supreme Court’s trial practice without in-depth research and consideration of whether it is essential to use such a conceptual tool. Even in academia, only a rather superficial analysis on the methodology of using “serious public interest need” as a conceptual tool has been made, instead of a meticulous analysis of the reasonableness of prior judgments. Therefore, this paper attempted to offer a more accurate understanding of previous Supreme Court rulings and recognize the functions and limitations of the conceptual tool of “serious public interest need” by examining the context and evolution of the relevant precedents. Initially, these precedents suggested a statutory interpretation that administrative agencies have discretion to decide whether to issue profitable dispositions in a case where whether administrative agencies have been statutorily delegated such authority remains unclear under the text of the applicable legislation. Under these precedents, where an act is considered the subject of administrative discretion under the interpretation of applicable statutes, administrative agencies can take into consideration various public interest factors in the stage of considering the intended effect of the exercise of its discretion and may reject to issue requested dispositions where public interest outweighs private interest, even if statutory requirements and standards for the issuance of profitable dispositions are met. Thus, the idea of “serious public interest need” as a reason for rejection naturally ensues from the interpretation of profitable dispositions as discretionary administrative acts, rather than a novel or consequential legal theory. However, the idea was later distorted and abused in administrative trial practice as if it were a universally valid theory that could be applied to all profitable dispositions without distinguishing between discretionary and binding acts and between whether the disposition requires permission or reporting. The idea of “serious public interest need” emerged in the 1990s and was widely adopted throughout the 2000s, but its use has declined sharply since the 2010s, putting it on the verge of extinction. The idea was merely an empirically-derived tool rather than a product of rigorous logic and was temporarily employed when legislation was inadequate and administrative law theory underdeveloped. Meanwhile, individual statutes have seen improvements, leading to the introduction of new requirements, such as “harmonization with the surrounding environment,” as the criteria for issuing profitable dispositions in the applicable legislation. Furthermore, the principle prohibiting ultra vires actions has been established. Therefore, it is no longer necessary and theoretically valid to rely on the abstract conceptual tool such as “serious public interest need” that is not supported by an explicit basis under statutes.