公法上 當事者訴訟에 관한 訴訟實務上 難點과 解決方案

Abstract

It is very difficult to distinguish between civil litigation and party litigation in public law (hereinafter referred to as “party litigation”) for which exclusive jurisdiction is given to the administrative court because party litigation is very similar to civil litigation in the case of litigants, the gist and counts of the claim. Both must be distinguished in order to avoid the problem of violation of the jurisdiction in practice. Although the Administrative Litigation Act provides a definition of party litigation and some of the Supreme Court's rulings are related to party litigation, neither the provision nor the Supreme Court precedent provides effective criteria of distinction. As a result, not only the litigant who files the petition but also the judge who is in charge of the trial, is subject to actual confusion about the object of party litigation and the criteria of distinction. In analyzing and studying the Supreme Court's decision, the object of critical commentary, that ruled the legal nature of lawsuit for affirmation of the non-existence of the duty to pay the employment and industrial accident insurance premium is party litigation, this article focuses on the practical point of view rather than the legal theoretical point of view. In other words, in handling party litigation, this article analyzes the practical difficulties which mainly the courts and judges face, and the causes of that. In the light of legal theory, legislation and precedent cases, despite the unclear criteria of distinction between civil litigation and party litigation, it is required for judge in charge to have a high degree of understanding of administrative case disputes. For example, the judge must actively take measures such as rectification of defendant, fulfillment of duty for elucidation. Nevertheless, the number of judges who have experience of public law trial, legal receptivity and mind to public law are not enough, and there are low interest and understanding of administrative law theory and administrative precedent among judges. In order to solve the practical difficulties related to party litigation,it is necessary to raise judges’ awareness about the administrative litigation and reinforce judges’ specialized training related to the public law. Also, the accumulation of Supreme Court precedents on party litigation is important. In addition, this article suggests establishment and amendment of laws for the clarification of the object of party litigation, and the introduction of disadvantage and risk mitigation system of litigants who misjudged the competent courts.