司法의 機能과 行政判例

Abstract

Having been a lot of studies on the development issues of administrative cases, there have been a few studies examining administrative litigations and administrative cases in terms of concept and function of the jurisdiction. Therefore, this paper aims newly to establish concept and function of jurisdiction in relation to the administrative litigations and cases, and seek improvement of administrative litigations and cases based on their new concept and function proposed above. Traditionally, substantial meaning of jurisdiction is considered as 'the act solving legal dispute according to the judicial procedure', and legal dispute is regarded as ‘the dispute applying the law to the specific rights and duties relationship between the parties’. However, the concept of legal disputes and jurisdiction in the traditional sense is necessary to be revised in order to include modern administrative litigation in jurisdiction. In other words, it is reasonable to define the concept of legal disputes as ‘specific legal disputes’ without binding them to rights and duties relationship, and define jurisdiction as ‘act settling specific legal disputes between parties by filing a lawsuit in an independent court according to laws’. Such expansion of judicial concepts is related to strengthening the function of administrative control among the functions of the jurisdiction. Therefore, it is necessary to review administrative cases based on new concept of jurisdiction, and to present improvement plan about them. There is a need to further strengthen the court's control power over the illegality of administrative rule. The view that a policy decision is unlawful, if it is highly unbalanced only, can be an obstacle to make judicial review of policy decisions. It is reasonable to think that 'the balancing interest not balanced' is unlawful, considering reality in which executive branch sometimes misuse her power of policy decision. They have to review the national compensation cases in terms of administrative control. It is reasonable to take theory, violating law by action, over concept of illegality under the National Compensation Act. It should admit more actively an public official's obligation prevening damage officially. It is not appropriate for some cases to require protective nature for private interest in official's duties as a element for national compensation responsibility. To improve the expertise of the national compensation trial, it is reasonable to transfer the national compensation lawsuit to the administrative court.