위법한 부관에 대한 소송상 구제

Abstract

Means for legal aid for illegal additional clause can be divided into the way to first control the effect of additional clause itself before its execution and the way to succor the case that a certain Realakt or juristic act are taken for its execution. Ways to control the additional clause itself develop into major discussion in view of, first whether illegal additional clause only can be independently considered as target for contestation(possibility of independent contestation), secondly what type of contestation will be raised against additional clause(type of contestation) and thirdly additional clause only can be cancelled in case that additional clause only becomes a target for cancellation of contestation(possibility for independent cancellation). In the possibility of independent contestation, additional clause that is added to major administrative acts can be considered as to be possibly divided from main body of administrative act and specified regardless of its kinds. Thus, all additional clauses, regardless of its kinds, can logically be regarded as appropriate to be independently a target for contestation. So long as type of contestation takes theory of division for burden and other additional clause, current system of administrative litigation can be regarded to allows only litigation of pure partial cancellation, but not to allow litigation of impure partial cancellation. Possibility of Independent cancellation presently obtains majority opinion for judging on whether to take independent cancellation based on theory of importance and legal binding force and its position also practically seems to be appropriate. There is no special difficulty in solving problems by principle of law of claim for return of undue profit in the case that Realakt is taken in order to execute illegal additional clause. On the other hand, there will be conflicts among theory of cancellation, theory of cancellation and invalidity and theory of claim for return of undue profit in case juristic act is taken in order to execute additional clause. To conclude, regardless of whether the additional clause is invalid or has already been cancelled(regardless of authentication of administrative act), if character of “error of important part” is recognized in the juristic act taken for execution, relevant juristic act can be cancelled and also if any reason for invalidity of the juristic act itself for execution of additional clause exists, the juristic act can be regarded as appropriate to be invalid. This is also an attitude of precedent of judgment.