행정소송상 법해석의 행정존중에 관하여

국문 초록 (Abstract)

행정과 사법은 양자가 모두 입법부가 제정한 법률을 적용하여 집행하는 국가작용이고, 삼권분립의 원칙 하에서 한쪽이 더 우월한 지위에 있는 것은 아니다. 그럼에도 불구하고 우리나라에서는 행정청의 결정이 사법심사의 대상이 되어 법원의 관할로 들어오는 순간부터 행정청의 의사는 전혀 무시되고, 오로지 법원의 의사만이 지배하는 것을 아무런 의문 없이 당연한 것으로 받아들여져 왔다. 이에 반하여, 전통적으로 법적 문제(question of law)에 관해서는 법원에 그 권한이 있다는 입장에 있었던 영미법 국가에서는 행정청의 결정에 대한 행정존중의 원칙에 관하여 논의가 활발하게 이루어지고 있고, 실제로 행정소송에서 행정존중에 따른 심사기준도 마련되어 사용되고 있다.행정결정에는 당해 분야의 전문가가 관여하거나 다수의 이해관계인의 논의를 거쳐서 이루어지는 경우가 많은데 반하여, 이를 심리하는 법원은 당해 분야의 전문성도 부족하고 이해관계인의 참여도 제한되어 다양한 의견에 대한 접근이 불가능하다. 그럼에도 불구하고 법원이 모든 행정결정에 대하여 민사사건을 심리하는 경우와 똑같은 자세를 가지고 법원의 일방적인 심사기준에 따라 판단을 하는 경우 법원의 부담이 가중될 뿐만 아니라 행정에 의하여 도모하고자 하는 공익에 반하는 판단을 하게 될 위험이 크다. 본 논문에서는 영미법에서 논의되고 있는 행정존중의 이론적, 실제적 근거,행정존중에 의한 심사기준 등에 관하여 검토해 봄으로써 우리나라의 행정소송에서 법원의 사법심사에 관한 기본적인 인식과 그 심사방식에 대하여 다른 시각을 제공하려고 시도해 보고자 한다.

목차 (Table of Contents)

• 국문초록
• 연구의 목적 ······································································ 1
• 연구의 방법과 범위 ························································· 6
• 제1장 행정존중의 의의 ··················································· 9
• 제1절 개설 ········································································· 9
• 제2절 정의 ········································································· 9
• 제3절 행정존중의 실례 ··················································· 11
• 제4절 행정존중의 2가지 분류 ······································· 15
• 제2장 행정존중의 이론적 근거······································· 16
• 제1절 개설 ········································································ 16
• 제2절 입법 의도의 실행 ·················································· 16
• 제3절 행정존중의 전제 ···················································· 19
• 제4절 권한위임의 범위와 행정존중 ······························· 21
• 제3장 행정존중의 실제적 근거········································ 25
• 제1절 개설 ········································································· 25
• 제2절 권한위임의 이유 ···················································· 25
• 제3절 소결 ········································································· 35
• 제4장 불합리성(Unreasonableness) 심사기준 ·········· 36
• 제1절 개설············································································ 36
• 제2절 불합리성(Unreasonableness)의 의의················ 36
• 제3절 완화된 심사기준························································42
• 제5장 행정존중의 한계 ······················································ 47
• 제1절 개설 ··········································································· 47
• 제2절 기본권 침해와 행정존중 ········································· 48
• 제3절 법적 문제와 행정존중 ············································· 58
• 제6장 우리나라에의 시사점 ·············································· 62
• 제1절 행정존중의 기본적 인식 ········································· 62
• 제2절 불확정개념의 문제 ··················································· 63
• 제3절 재량행위의 문제 ························································ 65
• 제4절 사실인정의 문제 ························································ 68
• 제7장 요약 및 결어 ······························································· 69
• 제1절 요약 ·············································································· 69
• 제2절 결어 ·············································································· 71
• 참고문헌 ················································································· 73
• Abstract ·················································································· 76