行政行爲 瑕疵承繼와 先決問題(대상판결: 2001. 6. 26. 선고 99두11592 판결)

Abstract

There have been many debates regarding the effects of a preceding administrative act to the consequent one. It leaves, however, many theoretical problems to claim that the defects of the precedent act can be challenged in the case dealing with the consequent administrative act. What is more, there has been little discussion about whether the defects of the precedent act can be argued in the case dealing with the consequent act when the precedent act has not yet acquired the force of incontestability. This article discusses about how to deal with the defects of the original administrative act in the cases dealing with the consequent act. This is related to the issue of the effectiveness of administrative acts, －especially, “the power of precedence and incontestability” and “the rule of precedency.” In this article, I will begin by making critical reviews of the traditional theories about “the power of precedence and incontestability” and “the rule of precedency,” and then proceed to new theory that can be applied to the question about the effect of the preceding act on the consequent one regardless of the incontestability of the preceding one. I’ve come to the conclusion that the defects of the preceding act can affect the consequent one only when the preceding one has not yet got the power of incontestability. And this conclusion should apply to the consequent civil or criminal cases as well as administrative ones. I admit that this conclusion leaves the problem of unavailability of remedy for the act that has got the power of incontestability. But this problem should be solved by either confining the requisites for the power of incontestability or eventually, by legislation for it.