처분기준 설정 ‧ 공표의무와 이를 위반한 처분의 효력

Abstract

The issue in this case is whether the disposition in violation of the obligation to establish and publish the disposition standards required by Article 20 (1) of the Administrative Procedures Act should be canceledbecause it is illegal. In response, the Supreme Court ruled that even if the administrative agency applied an unpublished disposition standards, it would not immediately result in cancellation of the disposition, but onlyif the disposition violated general administrative principles, such as the provisions of higher statutes or the principle of trust protection. The establishment and publication system of Korea's disposition standards is original and innovative, which is not found in other countries except Japan. It guarantees the citizens’ participation in the establishment of disposition standards and by promulgating the set disposition standards, it performs the function of presenting the direction of protection of its rights and interests to the other party of the disposition. Therefore, this system is not merely a disciplinary rule or a guiding rule, but is a major procedure for disposition under the Administrative Procedure Act and a procedure to promote the subjective rights of interested parties such as applicants, and the disposition that violates this obligation itself is considered to be a reason for cancellation. However, the Supreme Court is in a position that the violation of the above obligations does not constitute a reason for cancellation of the disposition, and that the disposition can be canceled only when it is combined with other reasons for the offense. If so, other means of implementing these obligations other than the cancellation suit are required, and I would like to propose the use of the national compensation claim suit and the complement of procedural defects as such means.