獨立有功者法適用排除決定處分取消訴訟에 있어 先行處分의 違法性 承繼

Abstract

The key issue in this case is whether the lineal ascendant family of the deceased who had collaborated with Japanese Imperialism in force majeure and was finally decided later as an anti-national collaborator with Japanese Imperialism by the Presidential Committee for Inspection of Collaboration for Japanese Imperialism can insist illegality of such a preceding disposition after receiving the decision of exclusion of application of the Act on Persons of Distinguished Service to Independence considered as a succeeding disposition. The decision on this case applies the legal principle of succession of illegality judged by the Supreme Court in its Decision 93NU-8542 dated January 25, 1994 in the case requesting cancellation of disposition of imposition of capital gains tax, etc. concerning whether illegality of the preceding administrative disposition of the announced official land value is allowed to be disputed in the succeeding administrative litigation for a separate purpose. This paper is intended to study whether it is really reasonable to form a theory on legal principle of succession of legal nature for the above case by following the conclusion of the old decision to be annotated which was made 20 years ago. In addition, this paper is also intended to analyze the logical structure of the decision to be annotated on critical points of view, seeking for how to set up exceptional case in which a defective preceding administrative action is succeeded to succeeding administrative action. In future, the matter of succession of illegality shall be treated to prohibit dispute on illegality in the course of step-by-step administrative decision in multi-stage administrative procedures or same administrative procedures unless otherwise exceptionally allowed. Such a problem solving method is considered more desirable than the method of solving issues on the Supreme Court applying basis of whether to orient to same or separate purpose and on the indefinite basis of the theory of acceptance limit as well.