公法上 給付請求訴訟으로서 抗告訴訟 및 當事者訴訟

Abstract

In the administrative law, a claim for payment of money is made through an appeal litigation or a party litigation. The action to rescind (Anfechtungsklage) as a kind of appeal litigation may be used, if the object of application is a kind of administrative acts (Verwaltungsakt), while the party litigation may be used, if it is not. The distinction between the actions for rescission and the party litigation here is based on how the concrete right of substantive application is established as shown in the appropriate case. The concrete rights of the appropriate case can be interpreted as a concrete confirmation of the substantive rights. The substantive right should be realized in the administrative litigation. In order to meet the constitutional request of effective and inclusive protection of rights, the types of administrative litigation available should not be limited to what are prescribed by the administrative litigation act, and even in the case of a party litigation. The administrative litigation should include an general action for affirmative relief (allgemeine Leistungsklage) and an action for declaration (Feststellungsklage). In addition, there are cases where it is considered that there is actually the right of application, which are derived from the matter of nature (Natur der Sache). In this regard, if a form of action for revocation of dismissal is taken, inevitably the application rights, which are derived from the matter of nature, will be used. The fundamental solution to this problem will be possible by the introduction of the action for mandamus, which orders an administrative authority to take and administrative act if the authority has either refused or failed to take it. In the present circumstance, where this action for mandamus is not admitted, the court can not but utilize the jurisprudence of the matter of nature.