근로복지공단에 의한 사업종류 변경결정의 처분성 - 프랑스 월권소송의 대상 확대에 관한 최근의 사례와 관련하여 -

Abstract

In the Republic of Korea, the appeal litigation which includes a suit for cancellation plays a very important role as it protects a legal right or interest of a person and assures lawful exercise of administrative power. Taking into account the current situation which the administration and the government authorities try to take administrative measures in various ways in order to cope with a rapid changing world, the problem regarding which activities can be a subject of appeal litigation is becoming more crucial than before. The purpose of this paper is to review the recent ruling of the Supreme Court on the decision made by the Korea Workers’ Compensation and Welfare Service(the “COMWEL”) with regard to the subject of appeal litigation. To examine the current status of the Supreme Court, the approach of comparative law on relevant decisions of the Conseil d'État, which acts as the supreme court for administrative justice in France, will be used to derive implications. In France, a suit for cancellation of administrative actions(le recours pour excès de pouvoir) was accepted only when a certain administrative action changes the legal status of a person. Accordingly, decisions that do not change legal status of a person could not be examined by administrative courts. However, the recent decisions of the Conseil d'État indicate that ‘soft law’(le droit souple) action, which does not necessarily change legal status of a person directly, could also become a subject of administrative litigation as it strongly affects the relevant people de facto. In the Republic of Korea, the subject of appeal litigation has been narrowed by courts’ decisions due to their interpretation of the concept of the term“disposition” under the Administrative Litigation Act(the “Act”). While the Act stipulates the wider concept of the disposition, the courts’ decisions have remained their narrow view as an administrative action, which requires changing the legal status of a person directly, may only be reviewed by the courts. However, in the recent ruling, the Supreme Court explicitly acknowledged the possibility of accepting the wider concept of disposition by admitting the decision of changing business type made by the COMWEL as a subject of the appeal litigation. This judgement was based on the understanding that the disposition does not have to meet the threshold which requires the direct change of a person’s legal status. Since the COMWEL’s decision is strongly affecting the people concerned, its decision may be reviewed by the court. Despite the reasoning of the Supreme Court did not perfectly match the term “disposition” of the Act, it is a desirable change in a perspective that it could bring the legitimacy of the administrative activities under the rule of law, and eventually protect the people from the arbitrary administration.