INTRODUCTION

1. �Law and Development' Movement in Korea

�Law and Development (L&D)’ is a term usually used to describe legal assistance programs for developing countries and related academic work.

However, this theory did not fit squarely with the developing countries’ cultural and political situation. The L&D movement was criticized as ethno­centric and naive (TrubekZGalanter 1974: 1062-102). This critique was taken by many to be a denunciation of the movement. As a result, L&D lost its momentum. In the 1990s, however, this movement revived at the end of the Cold War and the collapse of communism in Eastern Europe and the former Soviet Union (Trubek 2001: 8443-4).

Recently this �law and development’ movement has gained popularity in Korea as well. The reason for that can be explained as follows. Developing or transition countries in Asia are becoming more interested in the Korean experience of economic development and the role of law. Since these coun­tries regard the legal systems of developed countries as inaccessibly advanced, they think those systems are not appropriate for them. But consid­ering the unprecedented rapid economic development of Korea, they think the Korean model of �law and development’ suits them better (Kwon 2006: 3-4).

In this movement, Korean scholars and practitioners are determined not to repeat the mistakes of previous L&D movements of developed countries (Sim 2006: 275-305).

Many legal fields can be included in the legal system related to economic development. Antitrust law, regulation law, company law, intellectual prop­erty law are typical legal areas. Considering the Korean government’s criti­cal role in economic development, this paper will focus on the administrative law.

2. Administrative Law and Economic Development

Administrative law deals with many legal areas concerned with public administration, such as industrial regulation, administrative procedure, administrative litigation, and information disclosure. All of these areas can be related to economic development. However, this chapter will mainly deal with two traditional administrative law issues: (1) discretionary power of government and (2) transparency of government.

These two issues are related, because control of discretionary power is often thought to be a critical ingredient of transparent government. This transparency is often considered to be an indispensable basis for economic development. The UN and OECD have repeatedly emphasized �good gover­nance’ for economic development. Transparency is emphasized for two reasons (Kondo, 2002. pp. 7-12).

First, to prevent corruption. When people are left alone, they are more exposed to the temptations of corruption. Enhancing transparency in govern­ment means that the performance of public officials is open to the public. In this way, public officials can prevent themselves from being engaged in corruption. Prevention of corruption is closely related with economic devel­opment (Ehrlich/Kang, 2002, pp. 6-12). Developing countries receive Official Development Assistance (ODA) from developed countries or inter­national organizations, but these funds are often used inefficiently.

Secondly, to increase the predictability of government policies. There are many debates concerning the relationship between government and market. However, there is a consensus that if government’s policies are predictable, market participants can rely on governmental policies and consequently will operate more efficiently. Enhancing the transparency of government is indis­pensable in guaranteeing the predictability of its policies.

But is this theory compatible with Korean experience? Was discretionary power of government detrimental to economic development in Korea? Was transparency of government the basis of economic development at an early stage?^[460]

In my view, the early stage of economic development in Korea (1962-1979) is more closely related with �efficiency’ of government rather than �transparency’ of government. This �efficiency’ is related to discretionary power of government conducted through �administrative guidance’ (haeng- jeongjido). Transparency of government became significant only after accom­plishing basic economic development.^[461]

3. Need for Analysis of Administrative Cases

For this argument, administrative cases will be mainly discussed.^[462] There are two reasons for this approach. First, the judiciary usually takes a major role in controlling the discretionary powers of government. Thus, administrative case decisions concerned with discretionary power will show the actual degree of discretion used by government.

Secondly, in evaluating the degree of legal development in one country, the degree of gap between legal norm and reality is a critical issue. Case decisions take the role of narrowing this gap. Thus, administrative case decisions will show the actual stage of legal development in Korea.

In relating to discretionary power of government, informal �administrative guidance’ and its related cases will be mainly discussed.

Three statutes and related cases will be dealt in relation to transparency: the Administrative Procedure Act, Information Disclosure Act and Government Procurement Act.^[463] The Administrative Procedure Act provides the administrative interaction process between the people and the government. This process includes hearing, previous notice of administrative disposition, and previous notice of administrative plan, to name a few. The Information Disclosure Act secures people’s right to know relevant information held by the government.^[464] These two statutes are typical Acts in enhancing transparency. The Government Procurement Act provides the procedure that is needed for procuring goods, services, and works for government. Considering the huge amount of money that these procuring activities are concerned with, enhanc­ing transparency in government procurement is crucial (OECD, pp. 6-12).

II.