行政法上 政府規制의 本質 = The Essence of Government Regulation in Administrative Law

다국어 초록 (Multilingual Abstract)

This article examines the essence fo government regulation, and ultimately intends to contribute to the establishment of the regulatory administrative law as one of particular administrative law. In the traditional discussions on the details of administrative functions, we can find some serious problems.
One of these problems is that each means of regulation, according to their legal nature, can be devided into several functions with different natures; police administration, benefactor administration, public charge administration etc. Therefore we cannot exlain a series of regulatory process by integrated legal principles. The fundamental causes of this problem are closely related with the methodology of law.
In order to overcome this problem, and to fine out the legal principles corresponding to the reality of regulatory administration, we examined the essence of regulation. The drift of this arguement was developed through two stages.
First, we have defined the concept of regulation by considering the nature and function of modern state, the dynamic nature of administrative process, and the central element "interference". In short, regulation is the interrerences for the realization of public interests, of an administrative subject in private activities.
Second, we have examined the essence of regulatory administration. The traditional theories of regulation can be classified into two groups; public interest theory and private interest theory. Public interest theory emphasizes the importance of normative goals, but does not explain the mechanism and the structures of the distortion created by the implementations of public policies. Private interest theory emphasizes the importance of actual practices, but disregards the positive nature of modern state which performs the social welfare policies, and therefore it loses the normative moment.
Analysing the theories of regulation from the critical view point, we tried to compose a frame of references by combining traditional public interest theory with private interest theory. In this stage, we examined the theories on the capitalist state and law; especially on the ideological nature of law and state.
In conclusion, we suggested some guide-lines for the further studies on the regulatory administrative law.