命令･規則 등의 不眞正行政立法不作爲에 대한 法院의 規範統制 - 특히 獨逸의 規範補充訴訟을 中心으로 -

Abstract

Recently judicial control over the "omission" of administrative legislation has become an important problem. Conventionally, these issues have been treated as constitutional litigations, but these problems cannot in my opinion overlooked as administrative litigation. Besides constitutional appeal to administrative regulations and rules should be distinguished from norm control issues. The Omission of administrative legislation is normally divided into two types. One is that administrative legislation, such as administrative regulation or rule, can be completely omitted, and the other is that it can be incomplete or insufficient. It is being debated whether it is possible to file a lawsuit against such an omission of the administrative legislation. These problems are mostly due to imperfect legislation that does not receive medical insurance or social security. In Germany there is also no provision for the so-called norm supplementary litigation, but in German theory exists the view that norm control suit can be filed pursuant to Article 47 of the German Administrative Court Act, and that a general mandatory injunction suit or suit for declaratory relief can be filed. The German case is largely followed by a litigation suit for declaratory relief. In Korea, a concrete normative control system is adopted. Therefore, the type of litigation that can carry out against administrative legislative omission is a subordinate norm control method. In the case of filing a lawsuit against the refusal or disposition of administrative agency, it is a system in which regulation or rule violates the principle of equality and so the illegality can be confirmed. However, this method cannot rule out the norm absolutely even if it is illegal. Although the plaintiff win a suit, it is difficult to gain a re-decision with profitable contents from administrative agency unless the beneficiary contents are finally not included through amendment of administrative regulation or rule. Another way is to bring a 'party action (Parteistreitigkeit)' similar to a general mandatory injunction suit or a suit for declaratory relief of the German Administrative Court Act. These lawsuits are a way to confirm the subjective rights of the plaintiffs who require supplementation of norms and also the obligation to supplement norms corresponding to them. Norm supplementary cannot be due to the separation of powers doctrine and the administrative legislation discretion actively demanded. But illegality of incomplete or insufficient norm can be confirmed by the court, if the norm violates the principle of equality. There is a legal problem with the violation of the principle of equality also in the norm supplementary lawsuits in Germany. In such cases, the rationality review plays an important role in the examination of the principle of equality. Here, the discrimination criteria should be set up properly to judge whether there is a clear reason to justify the discrimination.