처분성의 확대론에 관한 검토

Abstract

In this paper, theories and precedents on the expansion of the disposal concept were reviewed. In the case of disposable acts, the theory is divided into one-way theory and two-way theory. In the past, the concept of disposability was narrowly accepted on the basis of the substantive legal concept. Today, however, the concept of disposability is expanded on the basis of the concept of dispute law. The case is also expanding on the basis of the legal concept of litigation. First, in the past, based on the concept of substantive legal concept, we recognized the disposability. Today, it is the position of the doctrines and judgments to take the legal concept of litigation. Second, the concept of formal administrative action is introduced in theory to expand the concept of disposability. Third, the special powers of administrative acts have recognized fairness and inevitability, but disposition is also recognized in fact acts, administrative guidance, and administrative plans. Fourth, administrative power is recognized as a special power of fairness and it is understood as a reflection effect of the administrative litigation system. Fifth, there is a view that discretionary power is claimed instead of justice in administrative acts that are subject to cancellation lawsuits. In the end, the expansion of the concept of disposal is the product of the efforts of the theory and precedent to expand the opportunity for the benefit of the people. According to the principle, the precedent is based on the concept of substantive legal concept and sees the administrative act as the main content of the appeal litigation, but also expands interpretation with the concept of disposition in the litigation law in mind in order to expand the disposability. Therefore, the enlargement of the disposability can not help but mean the divergence between the administrative disposition and the administrative act which were formerly single body.