예방적 금지심판에 관한 연구

Abstract

The advantage of Administrative Appeals is that they cost almost nothing and are heard relatively quickly compared to Administrative Suits, so anyone can easily use them. Compared to these advantages of Administrative Appeals, the types and targets of Administrative Appeals under the current Administrative Appeals Act are too narrow, which is an obstacle to attempts to expand the role of Administrative Appeals as a means of redressing the rights of the people. So, is there a need to amend the Administrative Appeals Act to establish preventive ban appeals, which aim to prevent the issuance of dispositions? If preventive ban appeals are in place, is a new regulation needed or is it sufficient to create a new regulation on party appeals? It is necessary to consider whether temporary relief can be provided by using the existing system or whether separate regulations should be established. First, regarding the need for preventive ban appeals, according to the current Administrative Appeals Act, rights relief through Appeals for revocation and Suspension of Execution is possible only after a disposition has been issued. However, if ex post facto relief measures such as Appeals for revocation and Suspension of Execution must be used for administrative actions that cannot be restored once they are made public, such as disclosure of lists or information, the timeliness of rights relief may be damaged. Therefore, it is necessary to increase the effectiveness of rights relief by introducing preventive ban appeals. Regarding the method of introducing preventive ban appeals, it is most logical to newly add party appeals to the Administrative Appeals Act and place preventive ban appeals as a detailed item of party appeals. However, since this is re-establishing the overall system of Administrative Appeals, I think it is most realistic for now to maintain the system of the current Administrative Appeals Act and have preventive ban appeals as a separate system. In this way, if preventive ban appeals are introduced while making full use of the current Administrative Appeals Act, the object of preventive ban should be ‘disposition’ just like the object of Appeals for revocation. Also Standing on Appeal should be limited to a person with legal standing. In addition, preventive ban appeals require a situational requirement that they can only be filed immediately before an intrusive disposition is issued, and should be used as a supplement only when ex post facto relief through appeals for revocation is judged to be powerless. The provisional disposition is suitable as a remedy for these preventive ban appeals. Preventive ban appeals are a system that is allowed only in very limited circumstances based on the urgency of time just before a disposition is issued. Therefore, if the claim requirements are not met, a decision to dismiss must be made, and if the claim requirements are met, a decision to cite must be made immediately. If the Eligibility Appellee makes a disposition in violation of this despite the citation decision, it is necessary to create a legal basis to order the Eligibility Appellee to provide collateral so that damages can be immediately received.