利益衡量의 입장에서 바라본 행정법

Administrative Law Reviewed through "Ad Hoc Balancing Tests": Discretionary Actions

Administering and enforcing law (administering) should consider possible interests even though some are not positively insisted. Administering needs to harmonize among interests and "Ad hoc balancing tests" make it possible. Through the balancing tests, some interests could be preferred to interests protected by statute law. Recent Cases of "Building Permits of love hotel" showed that environmental interests outweighed "protected interests" such as property or liberty. When it comes to building permits, any discretion had not been allowed. They were never considered as "discretionary actions". Some have worried that this would lead to "suicide of statute". Nevertheless, ad hoc balancing tests are necessary since the legislature failed to provide specific & clear statutory standards (or at least general those) of discretionary actions. The Supreme Court suggests needs of 'ad hoc balancing tests,' and of increasing power of the judiciary to control the administration at the same time.