법조 제75권 제3호(통권 제777호) 연구논문 - 122 - ❙Abstract❙ A Study on the Possibility of Expanded Application of the Balancing Mandate Theory 93) Lee, Tai Jeong* The Balancing Mandate(Abwägungsgebot) theory was developed by German legal doctrines and judicial precedents as a standard of judicial review for planning discretion(Planungsermessen), and has subsequently been adopted by Korean courts. By arguing that the scope of the Balancing Mandate theory does not necessarily have to be confined to the standard of review for planning discretion, this paper examines the possibility of utilizing it as a standard of review when the intensity of review(Kontrolldichte) over administrative discretion is relaxed. Balancing(Abwägung) refers to a general legal consideration process that derives an appropriate harmony based on the principle of the rule of law in situations where objectives conflict and multiple interests compete. Considering that such considerations are also inherent in the discretionary decision-making process, it is difficult to draw a strict demarcation between balancing and discretion. Furthermore, the means-end normative structure(Finalprogramm) of planning law functions as one of the theoretical tools to respond to the necessity of granting broad formative freedom in planning decisions; thus, it cannot be deemed a logically inevitable prerequisite for the Balancing Mandate theory. The German Federal Administrative Court(BVerwG) has also applied the Balancing Mandate theory to the review of administrative decisions under the Telecommunications Act and the Energy Industry Act, both of which possess a condition-effect normative structure(Konditionalprogramm). Korean judicial precedents similarly demonstrate that the theory of Defect in Balancing(Abwägungsfehler) can serve as a standard of review even outside the realm of administrative planning when the coordination and weighing of diverse interests are required. Expanding the scope of the Balancing Mandate theory may raise criticism that it * Ph.D. in Law, Attorney at Law(Lawfirm MISSION).
RkJQdWJsaXNoZXIy ODExNjY=