「法律上 利益」개념의 限界 (The Fuctional & Theoretical Limit of Interest in Law)

서지정보

· 발행기관 : 한국외국어대학교 법학연구소
· 수록지 정보 : 외법논집 / 34권 / 1호 / 235 ~ 257페이지
· 저자명 : 이상천

초록

The definition of 'interest in law' has been formed as material subjective right to the administration, and has been projected onto the laws on the litigation and trial of administrative disputes.
Thus, it is apprehended as in side of material law or as in side of laws on the litigation and trial of administrative disputes. Perhaps the above way of apprehension will be lasting afterwards.
The 'interest in law' has been in position for the status of private individual to administration. The theory of interest in law will be ever improved till the basic human rights be contained within interest in law.
But it is doubtful that the present system of administrative relief will be lasting long. For the theory of interest in law itself is blocking the advancement of positive administrative relief and has contradictory legal logic in itself which is that the legistlation takes almost all the private interests into consideration. Actually, it's not true. The law is not competent in all sides.
The theory of interest in law insists that the legal rights shoud be based on the legistlation of the assembly, which means that the assembly dicides the zone of legal interests by discretion. We call it legistlative discretion. The theory of interest in law is law-centered, i.e. legistlative descretion-centered definition. It is self-contradicting by containing some basic human rights into itself.
Thus, it is not proper or reasonable legistlation that one who has interest in law has standing on the judicial litigation and administrative trial of administrative disputes.
Someday 'interest in law' will be alternated with the definition of 'valuable interest worth protecting in law' under the system of administrative relief in the center of which the basic human rights exist.
These ongoing controversies on the zone of protection for private individuals are just only the way of thinking about the basic human rights by constitutional law.
We had come from the world of 'right', have stayed too long at the world of 'interest in law', and will be in the world of 'value'.
It is just the time that we should start the rearrangement of the system of administrative relief. In the heart of the new one will be the basic human rights by constitutional law.

영어초록

The definition of 'interest in law' has been formed as material subjective right to the administration, and has been projected onto the laws on the litigation and trial of administrative disputes.
Thus, it is apprehended as in side of material law or as in side of laws on the litigation and trial of administrative disputes. Perhaps the above way of apprehension will be lasting afterwards.
The 'interest in law' has been in position for the status of private individual to administration. The theory of interest in law will be ever improved till the basic human rights be contained within interest in law.
But it is doubtful that the present system of administrative relief will be lasting long. For the theory of interest in law itself is blocking the advancement of positive administrative relief and has contradictory legal logic in itself which is that the legistlation takes almost all the private interests into consideration. Actually, it's not true. The law is not competent in all sides.
The theory of interest in law insists that the legal rights shoud be based on the legistlation of the assembly, which means that the assembly dicides the zone of legal interests by discretion. We call it legistlative discretion. The theory of interest in law is law-centered, i.e. legistlative descretion-centered definition. It is self-contradicting by containing some basic human rights into itself.
Thus, it is not proper or reasonable legistlation that one who has interest in law has standing on the judicial litigation and administrative trial of administrative disputes.
Someday 'interest in law' will be alternated with the definition of 'valuable interest worth protecting in law' under the system of administrative relief in the center of which the basic human rights exist.
These ongoing controversies on the zone of protection for private individuals are just only the way of thinking about the basic human rights by constitutional law.
We had come from the world of 'right', have stayed too long at the world of 'interest in law', and will be in the world of 'value'.
It is just the time that we should start the rearrangement of the system of administrative relief. In the heart of the new one will be the basic human rights by constitutional law.

참고자료

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