행정판례 40년: 이론과 실무의 대화 - 실무가의 입장에서 -

Abstract

The arena of dialogue between theory and practice is not limited to a mere physical venue but rather transcends time and space through diverse mediums. To demonstrate this, I have empirically shown that the flow of theoretical knowledge into practical applications is much faster than commonly perceived, and that there are various channels through which this occurs. Furthermore, I have attempted to provide an empirical and micro-level perspective on how theory is concretely reflected in case law. To substantiate this point, I have first examined how criticisms of “the theory of claim rights” have been reflected in case law, and I have accompanied this with a commentary on the process and course of the progressive expansion of “the concept of standing to sue” as established by case law. Moreover, I have analyzed how the assistance of theory has been reflected in determining how to treat “procedural dispositions”, and I have shown in what situations and through what thought processes such issues arise in practice. Subsequently, I have shown how the sense of problems felt in practice regarding “procedural dispositions” is similarly raised in the establishment of “the legal principle of the succession of defects”, and based on the case law theory regarding the relational setting between a series of administrative acts, I have argued for the need for a general underlying principle. Furthermore, I have concretely argued the problematic situation surrounding the judicial review of the constitutionality and legality of orders and rules, one of the core themes of this paper, and I have argued that the current overall litigation system does not adequately conform to constitutional provisions. Following this, I have presented a specific case where the problem of the issue of a party's awareness of a disposition made by public notice was resolved with the help of theory, and I have examined the various litigation problems related to the prohibition order imposed during the pandemic situation. Based on this discussion, I have instead tried to consider what the characteristic markers of a theory that is helpful to and indicative of practice are, and I have proposed these as a conclusion of this article.