행정소송법 개정의 필요성과 방향

Abstract

The current Korean Administrative Litigation Act needs to be revised to complete the modern administrative litigation system at the social-state stage and to establish a litigation system to respond to modern legal disputes. The direction of the revision can be considered in three ways. The first one is to divide the types of administrative litigation into three (confirmation, formation, and performance litigation), organize the standing to sue based on the traditional view of infringement of rights, and prepare separate legislation to deal with modern legal disputes. The second one is to expand the concept of disposition to include the act of fact (Realakt) and administrative legislation, reorganize the types of administrative litigation to focus on appellate litigation, and adopt the theory of the relief of interests worthy of legal protection in determining the standing to sue. Finally, the third one is to complete the modern administrative litigation act system at the level of refining the current administrative litigation law. The amendment proposal submitted by the Korean Supreme Court in 2006 set the main purpose of administrative litigation as legality control among the two streams of designing a modern administrative litigation system. And as a way to resolve disputes under public law, it was the view that the Administrative Litigation Act should be reformed so that the Revocation suit could be the centerpiece. When revising the Administrative Litigation Act in Japan, there was also an argument that the administrative litigation system should be reformed with a single litigation system centered on the Appeals suit. On the other hand, like in Germany and Taiwan, there was the three-type theory that administrative litigation should consist of formation litigation, performance litigation, and confirmation litigation, but this has never been legislatively attempted in Korea. Although such measures are highly likely to satisfy the objectives of the reforms presented above, they were difficult to accept in academia familiar with the existing theoretical system. In addition, there is a difficulty in that it cannot be easily accommodated by the executive, who is concerned about strengthening the influence of the judiciary. In the end, the realistic justification that "To secure the effectiveness and relevance of the system, active public interest realization administration should be considered in addition to strengthening the people's rights remedies" can be identified as a more important factor. As a result, a partial improvement with continuity will likely be sought rather than a full revision of the administrative litigation system. In that case, even a revision similar to the amendment proposal in 2012, which was agreed upon to some extent by the academic and legal communities, should be completed urgently. However, given Japan's experience, it should be considered that there is a limit to the change in precedents, no matter how interpretive supplementation is made as long as it maintains the standard of legal interest of the standing to sue. In addition, it is necessary to supplement the types of litigation for administrative legislation and administrative plans, and legislative consideration should be given to class action (Verbandsklage). In addition, it is necessary to gradually push forward the reform goal of establishing a litigation system to respond to modern legal disputes.