取消訴訟의 對象

Abstract

This thesis is an analysis of the Object of Revocation Litigation. The theory about Objects of Revocation Litigation based on a conceptional approach which takes rigid interpretation of administrative act, dispositions of administrative agencies, in respect to the applicable scope of Revocation Litigation resulting in the obvious restriction of the use of Revocation Litigation as the means to settle administrative disputes. The functional approach moved to widen the applicable scope of the Revocation Litigation took place as an improvement on the conceptional approach. This was, however, hampered by a lack of consideration on the advantages and disadvantages of Revocation Litigation regarding the rights and interests of the people. Moreover, in determining the applicable scope of Revocation Litigation, it is necessary not to base it rigidly on the concept of administrative act, but on the function of Revocation Litigation operating in the process of the settlement of disputes, with the view of affording people the opportunity to institute a suit to settle disputes so that the right of the people may be secured. In respect to the judicial relief of rights and interests of the people, the positive sides of Revocation Litigation compared with those of the public procedure or the civil procedure are as follows; a system which settles disputes in early stage; a system which prevents the accomplished fact at the same time; a system which settles disputes swiftly and effectively; a system which controls legality by norm of conduct over administrative act, dispositions of administrative agencies, etc. It is believed that the applicability of Revocation Litigation should be enlarged within the administrative sphere in which these functions work. In respect to judicial relief of rights and interests of the people, the negative sides of Revocation Litigation compared with those of the public procedure or the civil procedure are as follows; a system which is endowed with "Selbstbezeugungskraft",Unanfechtbarkeit' ; a system which has the limitation of period of filing suit; and a system which excludes provisional disposition. It is necessary to be cautious about the theory that enlarges the applicability of Revocation Litigation in the field which these disadvantages can work.