고시의 법적 성격과 쟁송방법에 대한 고찰

Abstract

It must not be easy to determine the nature of the government notices (“Notice”) and the means of the legal remedy although the Notice in the current-administrative practice is often and variously used regardless of its contents and forms. To answer the above subject is important in the sense that an applicable legal remedy as a tool to eliminate legal handicap can be consequent in accordance with the legal nature of the Notice not for simply analyzing the legal nature of the Notice. The Notice in a normative form may be subject to either Administrative Litigation or Constitutional Appeal. Both the Supreme Court and the Constitutional Court are of the view that the Notice in a normative form of ‘general’ and ‘symbolic’ nature falls into the category of legal order or administrative rule; provided, however, that the Supreme Court explains that the Notice in a normative form can be administrative action or refusal (not legal order or administrative order) and in such case the Notice is subject to Administrative Litigation, only if the Notice itself in a normative form governs directly specific right or legal relation of people; provided, further, however, that the Constitutional Court states that the Notice generally has the nature of ‘general’ and ‘symbolic’ but in case where the Notice results in change in legal relation of the claimant of the Constitutional Complaint, such Notice has the nature of “in person”. Therefore, the Constitutional Court presents that the nature of “in person” quoted by the Constitutional Court is different from ‘several’ and ‘specific’ right or legal relations of people that the Supreme Court quoted. Although the Notice is in a normative form, the element of administrative action or refusal (i.e., the exercise of or refusal to exercise public authority by an administrative agency as function of law enforcement in relation to a ‘specific fact’, other similar administrative actions, as stipulated in Article 2(1) of Administrative Litigation Act) should be satisfied to bring administrative litigation thereon. The nature of “in person” applied by the Constitutional Court and ‘several’ and ‘specific’ Notice without administrative action or refusal are incompatible. It is not easy to determine the Notice is whether ‘general’ and ‘symbolic’ or ‘several’ and ‘specific’, and such decision originates different legal remedy. For those reasons, both the Supreme Court and the Constitutional Court need to give a serious thought on change in determining nature of the Notice in a normative form.