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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