공익의 법문제화

Abstract

The concept of public interest has been a much frequented topic, and has

been examined from a range of different perspectives. Academic discourse is

based not only on legal views but also on philosophical, political, economic

views. And these multi-disciplinary and interdisciplinary studies have advanced

the legal concept of public interest.

Even in the jurisprudence world, there is a wide range of views on the

concept of public interest. In legal philosophy, understanding the relationship

between a society and individuals as well as restricting individual rights in the

light of the public interest is very important issue. Even in the field of private

law, background knowledge of the concept of public interest is a norm in

interpreting private contracts. Moreover, the concept of public interest has

become a core concept in administrative law theories (Rechtsdogmatik). I have

considered public interest theories in the field of administrative law as the

Meta-Administrative law theories. This is why I have made efforts to understand

the concept in a more relevant way in administrative law during my tenure of

professorship.

The concept of public interest is a value concept, having many contentions

around it. For example, whose interest is the public interest? Who should decide

the public interest? Are public interest concepts in many societal spheres

different from the state interest? Will we be able to find the normative concept

of public interest and follow it or should we make choices based on our

preferences? These are the questions that I had in my mind and in order to

answer them, we should first look at historical development of the concept.

Until the Korean Civil Uprising of 1987 and following democratization of the

nation, the public interest had been an ideological concept to justify

governmental activities rather than a legal concept that requires reasoning.