不作爲違法 確認訴訟에 관한 몇 가지 問題

Abstract

The concerned court decision sustained the lower court's ruling that a local public service should be endorsed with the right to apply for promotion as a beneficiary of the interest of the law in such a case where the person was determined and published after a deliberation of the relevant personnel committee to be advanced. As with the recent precedents of the main stream, this decision showed an attitude to expand the scope of relief by way of widely recognizing the right to apply. In addition, the Supreme Court opined for the first time on the issue of the filing period in an action for confirming illegality of nonfeasance in this case. As a extension of the previous ruling which recognized the retroactive compliance of filing period in a case where an action for cancelling administrative measure was added to an action for confirming nullity of that measure, this decision recognized the retroactive compliance of filing period in a case where an action for confirming illegality of nonfeasance is added to an action for cancelling administrative measure to which an initial action for confirming illegality of nonfeasance was converted, under important consideration of the complementary nature of an action for confirming illegality of nonfeasance to an action for cancelling administrative measure. This opinion is reasonable, because it does not result in endangering the stability of proceedings, further it is expected to strengthen the rights of the applicants. When an administrative authority does not take any active measure contrary to its obligation, an action for confirming illegality of nonfeasance is the only remedy allowed under the current Administrative Litigation Act. But there is a limit as for a remedy, because the court only verifies the illegality of the nonfeasance and is not empowered to order a certain active measure directly. In fact, such an action may be evaluated as a transitional form of litigation to advance toward an action for cancelling administrative measure right after receiving such an administrative measure from the authority. For the purpose of guaranteeing the right to an effective remedy, introduction of a new form of action such as an action for compelling active administrative measure by making changes in the Administrative Litigation Act is needed.