하자승계론의 몇가지 쟁점에 관한 검토

Abstract

The government prices lands of residents, to collect land taxes, or to indemnify damages from land expropriation. In some cases, local governments don’t notify prices of lands to a land owner individually, but publish. Such a practice can deprive the right of a land owner to gain access to courts, because of the lack of price information. It has been an important problem in korean administrative law, whether illegality of a previous land pricing gives an decisive influence to illegality of a subsequent land tax, or not. This has been named as a problem of the ‘succession of illegality’. This article tries to criticize and make up for a minor theory and traditional major theory by accepting french ‘exception of illegality’ theory. In this article, I accept the ‘succession of illegality’, even when two administrative acts, previous and subsequent, pursue not one purpose, but an unified effect. The ‘succession of illegality’ between two acts is accepted, even when two acts are issued on the ground of, not the same rule, but different rules, under some conditions. It is not enough for the acceptance of the ‘succession of illegality’, that two acts are issued to accomplish an unified effect on the ground of different rules. A previous administrative act must have been a declaratory act, and a subsequent act has to play a dominant role between two acts.