處分의 變更申請權과 行政行爲의 再審査

Abstract

This paper is a case study on the ‘Supreme Court 2014DU41190 Decision sentenced on March 15, 2017’. In this case, the Supreme Court affirmed that the refusal disposition is disposable by recognizing the right to request the withdrawal of the prior disposition that attained the force of incontestability, and then decided that the administrative agency has n obligation to withdraw the prior disposition as requested. The Supreme Court, while basically taking a negative stance on whether or not to grant the right to request the change of disposition, has recently found that there are some cases acknowledging the right to request the change of disposition based on the statutory right. This case is also one of the precedents that take a positive stance, and it is meaningful to acknowledge the right to request the change of disposition to a third party who has been infringed by prior disposition. However, there is a problem that this case does not give a detailed examination as to what standards or requirements the recognition of the right to request the change of disposition is approved. For more detailed discussion, it is necessary to set a standard for ‘substantive requirement’ and ‘procedural limit(application period)’ of the right request the change of disposition by referring to the review of administrative act in Article 51 of the Federal Administrative Procedure Act of Germany. This case can be considered as having a reason for the review, because the period for bringing litigation was over and the factual relationship have changed. But regarding the application period of review, it is judged that the procedure limit has somewhat deviated from the point that it has exceeded 5 months from the date of review. Of course, I totally agree with the conclusions that the administrative agency should exercise the right to withdraw of prior disposition. It will be necessary to formulate a more advanced case law on the right to request the change of disposition and review system of administrative act in the future, reflecting the intent of the this case.