行政調査 및 行政節次의 法的問題 -대상판결: 대법원 2016. 10. 27. 선고 2016두41811 판결-

Abstract

This paper is an interpretation of the Supreme Court’s judgment for a case dealing with legal issues of administrative investigation and administrative procedures. In connection with administrative investigation, one of the key issues in the ruling, the parties' consent may be grounds for the legitimacy of administrative investigation in case that there is no legal basis for an individual law. However, if the provisions of administrative investigation procedures are explicitly set forth in an individual law or the Framework Act on Administrative Investigations, broadening the range of exception through consensus of voluntary cooperation may be understood itself to lock down the procedural rules of the Framework Act on Administrative Investigations in terms of the rule that exceptions of administrative investigation procedures shall be strictly interpreted. The position of the Supreme Court precedents is that procedural violation does not always lead to substantive defects, but if procedures are seriously violated, the irregularity of disposition may be asserted regardless of whether they affect the substance of the case, and even a small procedural defect may be an independent cancellation reason itself if it affects the substance of the case. In this regard, if a party alleges both substantive and procedural defects in a revocation suit, it is the desire of the party that the substantive defect be judged first, therefore it is not desirable to skip the substantive defect and make a cancellation decision for the reason of procedural defect. If the court acknowledges the substantive defect as a result of the hearing, it should judge the substantive defect first and judge the procedural defect later even if the procedural defects is claimed. It is considered the judicial way for the people. If the procedures prescribed in individual laws or the Act on Administrative Procedures are not observed, even if the substance is not affected, the disposition cancellation ruling for the reason of procedural violation itself will come to be an obstacles to the realization of the rule of law. Finally, the Supreme Court's precedent rules that even if there is a violation of the disobedience notification procedures prescribed in Article 26 of the Administrative Procedure Act, it does not constitute illegality of disposition. Even in this case, however, the ruling of disposition cancellation for the reason of procedural defects without regard to the substantive influence is considered reasonable in the light of the viewpoint of procedural justice or the purpose of enactment of the provisions in the Act on Administrative Procedures.