法的인 根據가 없음에도 公行政을正當化하는 行政判例에 대한 批判的 檢討－행정행위의 부관과 수익적 행정행위의철회에 관한 논의를 중심으로－

Abstract

Not a little administrative act are practiced with no legal ground of authorization. Administrative cases justifying such public administration are needed to be studied whether they are appropriate in terms of the Rule of law. This paper critically studied administrative cases of withdrawal of collateral clause and revenue administrative act in the viewpoint of the Rule of the law and further tried to find legislative countermeasures. Firstly, the Korean Supreme Court has decided that a binding act including building permission shall not be given any collateral clause and any binding act given a collateral clause shall be invalid. This is generally because an administrative disposition made without legal authorization has been uncritically accepted legally invalid differently from simple illegality. Court does not fully explain the reason why a collateral clause given to a binding act or binding discretion is invalid. But, definite grounds are required to be suggested for whether the court’s Dogma is reasonable, whether such as administrative act may not be judged invalid but simply illegal and cancellable. In addition, express stipulation for collateral clause given to administrative act is required to be provided for in individual laws or Administrative Procedures Act. Secondly, withdrawal of revenue administrative act is making a legally established administrative act ineffective ex post facto, and weakens legal status of the party concerned in comparison with cancellation of illegal revenue administrative act, and makes being compensated difficult unless otherwise provided for. Accordingly, in a forward-looking viewpoint, the court’s decision is required to be changed and legislative countermeasures are required to be made so that withdrawal of administrative act is prohibited without legal ground for the simple reason including circumstance change and the concerned legal ground and rules for compensation are established.