행정소송에서의 직권심리주의의 의미와 범위

Abstract

The Supreme Court ruled in regard to the Article 26 of Administrative Litigations Act(hereinafter “the Act”) that “it does not mean that the court has unlimited authority to find the facts parties, plaintiff or defendant, have not claimed, but it means that the court can examine and decide on the case ex officio based on the facts not claimed by parties but presented in the case within the scope of the plaintiff's claims and only when required for the sake of the public interest.” It would be safe to say that the ruling downscales, in a sense, the meaning of the Article 26 and the scope of the court’s examination. The Act, as an exception of Verhandlungsmaxime, stipulates the Article 26 and the Article 28 providing that the court can dismiss the case taking the circumstances into account even when it finds the case is in favor of the plaintiff. Given that, it can be said that the aforementioned ruling way over downscales the spirit of the Act by saying the court has limited authority to examine ex officio the facts not claimed by parties even when it is required, in light of the nature of an administrative litigation, for the public interest. It sounds more reasonable to regard the Act as embodying a structure that an administrative litigation case is tried basically in the same way a civil case is as long as it does not counter to the nature of the Act, while allowing the court the authority to examine the case ex officio through the Article 26 when the purpose of the case calls for it or the public interest weighs greater. The Supreme Court’s ruling that will be reviewed in this paper is basically in line with its precedents in that it says the court finds facts based on what has been presented by parties, but it goes one step further by saying it is unlawful that the court did not examine and decide on the case ex officio when there is a reasonable doubt in light of what had been presented, and thereby reinforces the fact that the court is obligated to examine and decide on the case ex officio when needed for the public interest. In that sense, the ruling widens the scope of Untersuchungsgrundsatz in light of the nature of administrative litigations than its precedents. The ruling outstands, in particular, in that it imposes the obligation on the court to examine and decide on the case ex officio under a certain set of conditions. It should be noted that while it still keeps the cap on the scope of ex officio examination to what has been presented in the case, it, by saying “when the court can have a reasonable doubt on the legality of a disposition based on facts and evidences presented by parties,” gives the room for extending the scope of the obligation of Untersuchungsgrundsatz in any degree.