土地臺帳의 職權抹消 및 記載事項變更拒否의 處分性

Abstract

Judicial precedents of administrative law have understood disposition that is the object of administrative litigation as "the exercise of an administrative agency as a public authority, which is the execution of laws with respect to specific facts and may directly affect the citizen’s rights or obligations". This conceptualization of disposition in the precedents, however, has added a new qualification, ‘may directly affect the citizen’s rights or obligations,' which is not stated in the Administrative Litigation Act. This conceptualization does not coincide with the regulatory definition of disposition and places excessive restrictions on the interpretation and application of the Act while contributing little to the protection of the rights and interests of people. Therefore, it would be inappropriate to judge whether or not disposition is recognized according to the additional qualification which is not stated in the Act. Although the precedents are to be respected, the added qualification should be applied with some flexibility. 『Judgment 1』 has recognized the characteristics and effects of the cadastre as public law. Also, 『Judgment 1』 has recognized the cancellation ex officio of the cadastre as a disposition since the cadastre is closely related to the substantive legal relationship of the landowner. It could be seen proper in that it expanded the scope of disposition related to cadastral register such as the cadastre, which has the characteristics and effects as public law. Still, 『Judgment 1』 has limitations since it recognized the additional element of disposition that puts emphasis on the substantive relationship of private law as the main criterion to identify the characteristics of disposition. In comparison, 『Judgment 2』 has not acknowledged altering the entered matter of cadastre as disposition. Unlike 『Judgment 1』, it has overlooked the characteristics and effects of cadastre as public law. 『Judgment 2』 concluded that altering the entered matter of cadastre is only for the convenience in administrative process and to provide facts. Likewise, 『Judgment 2』 is limited in that it followed the same approach as the conventional precedent. It is difficult to agree with 『Judgment 2』 in respect that altering the owner's name of cadastre may influence on the substantive relationship of private law to the land. Our current administrative litigation system is operating in accordance with the so-called revocation litigation-centralism. Therefore, the protection of the rights and interests of people would depend on how an administrative agency recognizes disposition that is the object of appeal litigation. Thus, it is called for that Court make unremitting efforts to extend the scope of disposition.