취소소송의 원고적격 인정기준의 재정립 필요성 － 환경행정소송에서의 사실적 요소에 근거한 원고적격 확대의 한계에 관한 고찰을 중심으로 －

Abstract

According to Article 12 of the Administrative Litigation Act, a revocation suit may be instituted by a person having legal interests to seek the revocation of a disposition, etc. There are various views on what constitutes a ‘legal interest’, but the majority opinion and precedents are based on the ‘legal protection interest theory’, which holds that a person who has a private interest that is individually, directly, and specifically protected by the laws has the legal interest. However, the Supreme Court has increasingly broadened the scope of standing to sue in administrative action in response to the realization that strictly applying the statutory protective interest theory to recognize plaintiffs' standing may result in an overly narrow definition of standing, making it difficult to resolve actual legal issues. ‘Supreme Court Decision 2007Du16127 Decided April 15, 2010’ is also an example of a decision that expands the scope of standing to sue in administrative action to solve actual legal problems. This decision expanded the scope of standing to sue by determining whether a person is recognized as a ‘resident within the affected area,’ based on the criterion of actual impact by water intake and supply facilities, rather than applying the formal criterion of residency within the area. This decision is significant in that it (1) expanded the scope of standing to sue by easing the plaintiff's burden of proof through a broader understanding of the scope of residents in the affected area; (2) replaced the formal criterion applied by previous judgments to determine whether a person is a resident of the affected area with a substantive criterion(whether a de facto infringement of interests is recognized in light of the type and nature of the infringement of environmental interests), further reinforcing the trend of judgments based on the factual element of de facto infringement of interests. And (3) by expanding the scope of the affected area to include plaintiffs who were outside the affected area under previous precedents as residents within the affected area, it can be evaluated as an effort to provide a ruling that can be explained as much as possible by the legal protection interest theory. As can be seen in the ‘Supreme Court Decision 2007Du16127 Decided April 15, 2010’, the Supreme Court endeavored to overcome the limitations that arise from the strict application of the legal protection interest theory, while still adhering to it in principle. However, this approach did not fundamentally solve the problem of standing to sue in administrative action and led to the lack of a consistent theoretical standard. In particular, with the growing trend of judging cases based on the factual elements, the number of cases that are difficult to explain using the legal protection interest theory has increased, leading to a reduction in the predictability of judgments. The above problematic situation is a result of the gap between theory and practice caused by the adherence to the legal protection interest theory, which is inconsistent with the structure and function of Korean revocation suit. Therefore, it is necessary to establish a new standard for recognizing standing to sue in administrative action that is in line with the actual structure and function of revocation suit. Regarding (1) the tendency of expanding the scope of standing to sue in administrative action, (2) the structure and function of revocation suit and (3) the legal status of the people in a democratic rule of law country, it is appropriate to interpret ‘legal interests to seek the revocation of a disposition’ as ‘interests that can be regarded as interest to seek revocation of a disposition in light of the entire legal system’.