행정재량과 주장·증명책임

Abstract

This thesis analyzes the relationship between the discretion of the administrative agency and the burden of proof in Administrative Litigation. The research methods employed in this thesis include examining the development of legal systems, case laws and theories related to this problem in Korea, Germany and Japan. It is desirable for proper judicial control of a discretionary disposition issued by an administrative agency that the judicial review scope of the administrative discretion should be decided in the view point of the distributing function between a administrative agency and a court in the process of the law application. The administrative discretion in the legal consequences must be distinguished from that of facts admitting for strengthening the juridical review of the administrative discretion. To intensify the density of juridical review for the administrative discretion, besides juridical review based on the substantive examination, juridical reviews by procedural screening and by screening the process of interest evaluation in the administrative decision are required to develop as a method of juridical review in the trial process. The Administrative Litigation Law Article 26 regulates ex officio examination. It relates with problems of the separation between the burden of proof in administrative litigation and the burden of assertion. Within the scope to admit inquisitorial procedure in Administrative Litigation, problems related to the burden of assertion can not be raised. The features of evidence law in administrative litigation related with administrative discretion come from maldistribution of evidence and information to the administrative agency, technically specialized evidence, the high necessity of protecting public interests. These kind of features of law in administrative litigation should be reflected in the process at a convincing level to admit as evidences.