• 대학교재 > 법학계열 > 국제법

• [시리즈] 서울대학교 법학연구소 법학연구총서 [52]

출판사 리뷰

지금까지 우리나라 재량행위 이론에 관한 논의의 기본적인 틀은 독일의 재량행위 이론에 크게 영향을 받았다. 그러나 그 이론적 원류源流에 해당하는 독일 재량행위 이론이 어떠한 역사적 배경과 맥락에서 시작되었고, 실무상 어떠한 문제점을 해결하기 위해 전개되고 발전되어 왔으며, 행정법 전체의 체계에 있어서 어떠한 의미와 위상을 가지는지 등에 관하여는 심도 있는 연구가 부족했던 것으로 보인다.

재량행위 이론은 행정법 총론의 중심축을 형성하고 있음에도 그 해명이 쉽지만은 않은 주제이다. 특히 재량에 관한 각 쟁점별로 우리나라의 학설과 대법원 판례의 견해 차이가 작지 않았던 것이 사실이다. 필자는 이러한 난제難題인 재량의 문제를 이해하고 해결하는 데에 도움이 되고 싶은 바람에서, 독자들에게 한걸음 더 쉽게 다가가기 위해 박사학위 논문을 책으로 출간하게 되었다.

필자는 2001년부터 행정법을 공부해오면서 얻은 이론적 이해와 서울행정법원 등에서 3년간의 행정재판을 포함하여 약 10년 간 판사로서 재판실무를 해 온 경험을 바탕으로, 본 연구에서 실무적인 관점과 연결점을 찾고 이론적 밀도와 깊이 면에서도 부족하지 않은 재량에 관한 논의를 하기 위해 노력하였다. 본 연구가 재량에 관한 학설과 판례 사이의 상호 존중과 이해를 통한 발전적 상관관계를 형성할 수 있는 데에 보탬이 될 수 있기를 희망해 본다.

서문
국문 초록
약어표(Abkurzungsverzeichnis)

연구의 목적 ··································································································· 1
연구의 범위와 방법 ······················································································ 4


제1장 예비적 고찰 ··················································································· 9

제1절 서설 ····························································································· 11
제2절 재량개념의 변천 ·········································································· 13
제3절 자유재량 논의의 시발점 ······························································ 15
Ⅰ. 행정재판소 설립 배경 ·································································· 15
Ⅱ. 타협의 산물 ················································································· 17
Ⅲ. 자유재량에 대한 재판관할 ··························································· 18
1. 오스트리아 등 ·········································································· 18
2. 프로이센 등 ············································································· 20
제4절 재량이론의 역사 ·········································································· 23
Ⅰ. 입헌군주제 시대 ··········································································· 23
Ⅱ. 바이마르 공화국 ··········································································· 28
Ⅲ. 나치 시대 ····················································································· 31
Ⅳ. 제2차 세계대전 이후 ··································································· 33
제5절 소결 ····························································································· 40


제2장 요건재량이론의 정립: 베르나치크(Bernatzik)
- 법률요건에 대한 제3자의 심사불가능성으로서의 재량 -························· 45

제1절 베르나치크의 생애 ······································································· 47
제2절 이론의 주요 내용 ········································································ 49
Ⅰ. 자유재량의 의의 ··········································································· 49
1. 행정재량과 사법재량 ································································ 49
2. ‘자유재량’의 이중적 의미 ························································· 52
3. 자유재량과 개인의 자유 ··························································· 53
4. ‘기술적 재량’(technisches Ermessen)의 제안 ························ 55
Ⅱ. 자유재량과 사법통제 ···································································· 56
1. 자유재량과 법기속의 관계 ······················································· 56
⑴ 논리적 추론과정의 동일성 ······················································ 57
⑵ 논리적 추론의 전제(前提)상 차이 ··········································· 58
2. 재량이 인정되는 경우 ······························································ 60
⑴ 법률요건상의 추상적·불확정 개념 ··········································· 61
⑵ 행정청의 공익 판단 ································································ 63
3. 재량에 대한 사법통제 가능성 ·················································· 64
4. 행정의 법적용과 사법(司法)작용의 비교 ··································· 66
5. 행정재판소의 재량통제에 관한 입법론 ···································· 67
제3절 분석과 영향 ················································································· 69
Ⅰ. 이론에 대한 비판 ········································································· 69
1. 비판의 요지 ············································································· 69
2. 검토 ·························································································· 71
Ⅱ. 베르나치크의 요건재량이론의 가치와 영향 ································· 73
1. ‘의무에 합당한’(pflichtmaßig) 재량의 제시 ····························· 73
2. 법학적 논증 방법 도입 ···························································· 74
3. 후세의 재량행위 이론에 대한 영향 ········································· 76


제3장 효과재량이론의 등장: 테츠너(Tezner)
- 법률효과 선택의 자유로서의 재량 ― ····································································· 79

제1절 테츠너의 생애 ············································································· 81
제2절 이론의 주요 내용 ········································································ 82
Ⅰ. 재판관의 법률요건의 해석?적용 의무 ··········································· 82
1. 전통적 임무인 법해석과 법적용 ·············································· 82
2. 법개념으로서의 불확정개념 ······················································ 84
3. 재판관의 역할 ·········································································· 85
Ⅱ. 법률효과 선택의 자유로서의 재량 ··············································· 88
1. 재량에 대한 법적 제한 ···························································· 88
⑴ 행정에 대한 불신 ··································································· 88
⑵ 재량에 대한 법적 제한의 내용 ··············································· 89
2. 재량의 인정영역의 수정 ··························································· 92
⑴ 법률요건의 모호성 ·································································· 92
⑵ ‘재량판단’(Ermessensurteil)의 구분 ········································ 93
⑶ 재량의 본질 ············································································ 96
3. 객관적 법위반의 하자 ······························································ 98
4. 심사강도 ··················································································· 99
5. 행정절차 ··················································································· 101
제3절 분석과 영향 ················································································· 104
Ⅰ. 이론에 대한 비판 ········································································· 104
1. 비판의 요지 ············································································· 104
2. 검토 ·························································································· 105
Ⅱ. 테츠너의 효과재량이론의 가치와 영향 ········································ 107
1. 행정재판권의 관할 확장 ··························································· 107
2. 법률효과로의 중심축 이동 ······················································· 108
3. 실무적·소송법적 접근방법 ······················································· 109
4. 이상적인 행정재판관 ································································ 110
5. 후세의 재량행위 이론에 대한 영향 ········································· 111


제4장 효과재량이론의 체계화: 라운(v. Laun)
- 다양한 목적 선택의 자유로서의 재량 ― ······················································· 113

제1절 라운의 생애 ················································································· 115
제2절 이론의 주요 내용 ········································································ 116
Ⅰ. 자유재량과 법적용의 엄별 ··························································· 116
1. 행정기관의 형태 ······································································· 116
2. 자유재량과 법적용 ··································································· 117
Ⅱ. ‘기속재량’(gebundenes Ermessen)의 도입 ································· 118
1. 기속과 재량의 구별 ································································· 118
2. 기속재량의 개념 ······································································· 119
Ⅲ. ‘목적선택’(Zwechwahl)의 자유로서의 재량 ································· 121
1. 자유재량 부여의 근거와 취지 ·················································· 121
2. 자유재량의 본질과 인정영역 ···················································· 123
3. 공익에 대한 예외적 취급 ························································· 126
4. 상·하급 행정청 사이의 자유재량 ············································· 129
5. 현행법에 나타난 자유재량의 형태 ··········································· 130
⑴ 문언 표현 방식 ······································································· 130
⑵ 관할배제 규정 ········································································ 131
Ⅳ. ‘자연적 법원칙’(naturliches Rechtssatz) ····································· 132
1. 자유재량의 ‘근거’로서의 자연적 법원칙 ·································· 132
2. 자유재량의 ‘한계’로서의 자연적 법원칙 ·································· 133
Ⅴ. 자유재량의 소송상 문제 ······························································· 134
1. 심사범위와 소송상 취급 ··························································· 134
2. 재량심사에 있어서의 입증 문제 ·············································· 136
Ⅵ. 자유재량의 한계 ··········································································· 137
1. 외부적·내부적 한계의 구분 ····················································· 137
2. ‘재량일탈’(Ermessensuberschreitung) ····································· 138
제3절 분석과 영향 ················································································· 141
Ⅰ. 이론에 대한 비판 ········································································· 141
1. 비판의 요지 ············································································· 141
2. 검토 ·························································································· 142
Ⅱ. 라운의 재량이론의 가치와 영향 ·················································· 144
1. 재량 범위의 실질적 제한 ························································· 144
2. 기속재량을 통한 사법심사의 확대 ··········································· 145
3. 합목적성 판단으로서의 재량 ···················································· 146
4. 다원적 법비교 방법론 ······························································ 147
5. 후세의 재량행위 이론에 대한 영향 ········································· 148


제5장 효과재량이론의 수정
- 요건재량의 예외적 인정: 발터 - 옐리네크(W. Jellinek)
- 법률이 의도한 다의성으로서의 재량 - ······························································ 151

제1절 옐리네크의 생애 ·········································································· 153
제2절 이론의 주요 내용 ········································································ 155
Ⅰ. 기속과 재량의 구별 ····································································· 155
1. 기속행정과 재량행정 ································································ 155
2. 기속행정과 재량행정의 구별 필요성 ········································ 156
Ⅱ. ‘법률이 의도한 다의성’으로서의 재량 ········································· 158
1. 자유재량의 본질과 인정영역 ···················································· 158
2. 자유재량과 불확정개념의 관계 ················································ 160
3. 공익의 취급 ············································································· 163
4. 필요성과 합목적성의 취급 ······················································· 164
5. “할 수 있다” 규정(Kann-Vorschrift)의 취급 ····························· 165
Ⅲ. 자유재량에 대한 정의(定義) ·························································· 166
1. 정의 ·························································································· 166
2. 요건별 의미 분석 ····································································· 167
⑴ 법률에 의하여 근거 내지 권위를 부여받음 ···························· 167
⑵ 하자 없는 이행 ······································································· 168
⑶ 불확정개념의 양 경계 안에서의 개별적 한정 ························· 169
⑷ 목적실현의 내적 가치 또는 무가치에 관한 개별적인 견해 ···· 169
Ⅳ. 목적·수단 선택상의 자유재량 ······················································ 170
Ⅴ. 요건재량의 인정 문제 ·································································· 171
Ⅵ. 자유재량과 법적용 및 법질서의 관계 ·········································· 173
1. 자유재량과 법적용의 대립관계 ················································ 173
2. 자유재량에 대한 법질서의 의미 ·············································· 175
Ⅶ. 재량하자의 유형화 ······································································· 176
1. 재량하자의 의미와 근거 ··························································· 176
2. 재량하자의 유형 ······································································· 178
⑴ 9가지의 유형 ·········································································· 178
⑵ 간소화된 세 개의 유형 ··························································· 181
3. 재량하자론의 의의 ··································································· 182
제3절 분석과 영향 ················································································· 184
Ⅰ. 이론에 대한 비판 ········································································· 184
1. 비판의 요지 ············································································· 184
2. 검토 ·························································································· 185
Ⅱ. 옐리네크의 재량이론의 가치와 영향 ············································ 186
1. 재량이론의 심화 ······································································· 186
2. 불확정개념의 범위 한정 ··························································· 187
3. 재량하자론을 통한 자유재량의 축소 ········································ 188
4. 후세의 재량행위 이론에 대한 영향 ········································· 189


제6장 종합적 분석 및 시사점 ································································ 191

제1절 독일 재량행위 이론의 형성과 변천 ············································· 193
Ⅰ. 서설 ······························································································ 193
1. 재량의 위상 변화 ····································································· 193
2. 입법자에 의한 재량부여 ··························································· 195
3. 재량과 법적용의 관계 ······························································ 196
Ⅱ. 재량의 본질과 착안점 ·································································· 197
1. 학자별 주장과 근거 ································································· 197
2. 분석 및 검토 ············································································ 200
Ⅲ. 재량의 인정영역과 재량의 유형 ····················································201
1. 재량의 인정영역 ······································································· 201
2. 불확정개념의 취급 ·····································································205
3. 분석 및 검토 ············································································ 207
Ⅳ. 재량의 인정 범위 ········································································· 207
Ⅴ. 재량에 대한 사법통제 가능성과 재량하자 ··································· 209
1. 학자별 주장과 근거 ································································· 209
2. 분석 및 검토 ············································································ 210
Ⅵ. 소결 ······························································································ 212
1. 각 학설의 학문적 의의 ···························································· 212
2. 독일 재량행위 이론의 변천 방향 ············································· 215
3. 논의의 한계 ············································································· 216
제2절 우리나라 재량행위 이론과 판례 ·················································· 218
Ⅰ. 학설의 현황 ················································································· 218
1. 전통적 재량행위 이론 ······························································ 219
⑴ 요건재량설 ·············································································· 220
⑵ 효과재량설 ·············································································· 221
⑶ 판단여지설 ·············································································· 222
⑷ 소결 ························································································ 225
2. 변화의 시도 ············································································· 229
3. 검토 ·························································································· 231
Ⅱ. 우리나라 판례의 태도 ·································································· 233
1. 기속과 재량의 구별기준 ··························································· 233
2. 기속재량의 취급 ······································································· 235
3. 요건재량의 인정 ······································································· 238
4. 재량행위 사례 ·········································································· 239
5. 검토 ·························································································· 242
제3절 시사점 ························································································· 245
Ⅰ. 역사적 관점 ················································································· 245
Ⅱ. 반성적 관점 ················································································· 247
Ⅲ. 건설적 관점 ················································································· 252


참고문헌 ····································································································· 256
Zusammenfassung ························································································· 261