法令의 改正과 信賴保護原則 ― 信賴保護原則의 積極的 活用에 대한 管見 ―

Abstract

As the main function of administration in modern nations has expanded to a beneficial function, people's reliance on administration has also increased. Yet increased trust in administrative action also leads to higher chances of suffering damage. The principle of legitimate expectations (hereinafter "the principle"), which protects an individual's trust in the actions of the administrative organs, is based on these shifts. And if, especially, the object of trust is an act and subordinate statute, whether to apply the principle becomes an issue with respect to retroactive legislation or an amendment of the act and subordinate statute. In this regard, judicial precedent categorizes retroactive laws into genuine retroactive law and quasi-genuine retroactive law, and exceptionally acknowledges application of the principle according to the conflicting public - private interests, giving priority to legislative discretion in the case of quasi-genuine retroactive law. However, this exceptional application is an unavoidable result that regards application and effect of the principle as substantive protection, and should determine the alternative under the current structure of revocation litigation. Nevertheless, as can be seen in this case, there is a need to protect private interests at least partially, especially in connection with the amendment of act and subordinate statute. And it is necessary to apply the principle flexibly and proportionately. In this light, a method should be devised that allows for more flexible protection of trust by strengthening compensatory protection. This paper concludes that Courts should actively cooperate and involve themselves in the application of the Administrative Litigation Act of Article 10.