취소소송에서의 소송물과 심리범위 그리고 판결의 효력

Abstract

The object of a revocation litigation is ‘general illegality of disposition’, and the scope of the hearing is the range where the sameness of disposition is recognized. However, since the ‘disposition’, which is the subject of judgment, cannot be recognized with ignoring the facts that are the subject of discipline, the scope of the identity of the disposition varies for each disposition in question. If a disposition is identified only in appearance without presupposing specific facts, the scope of hearing should be limited by infringing the Plaintiff’s right to defend, and in the case of refusal, it becomes too narrow to impede a one-time resolution of disputes. Therefore, considering the substance of the disposition, the types should be divided into ex officio disposition and application disposition. In the case of ex officio disposition, the administrative agency detects the specific facts that led to the disciplinary action or sanctions and applies the disciplinary action or sanctions accordingly. so the identity of the disposition should be judged by paying attention to the facts leading to disciplinary action or sanctions. Therefore, claiming other misconduct or misconduct and using it as the basis for the legitimacy of the disposition is to harm the identity of the disposition. By doing so, the Plaintiff’s right to defend is guaranteed, and even if the same re-disposition is scheduled, the Plaintiff can at least enjoy the benefit of the delay in sanctions. In the case of a refusal disposition, the fact that the other party applied for the issuance of a specific administrative act and rejected it as a result of investigation and review by the administrative agency becomes the concrete fact. Accordingly, it is permitted to assert other grounds for refusal that the administrative agency did not raise as a reason for disposition, and it is in response to the request for a one-time resolution of the dispute. In this case, the plaintiff’s benefit of timely remedies is greater than the guarantee of the right of defense, and even if the plaintiff loses, the plaintiff saves cost and effort. The date and time of disposition cannot be excluded from specific factors. Comparatively, in Germany, there is no regulation on binding effect of judgment, so the effect of prohibition of repetition should be explained as an action of Res Judicata. but in Korea, there is a regulation of the Administrative Litigation Act that can interpret binding effect of judgment according to its substance. It is not logical to interpret the above regulations as stipulating the natural reason that the res judicata of the revocation judgment should be respected ex post facto. On the other hand, the disadvantage of the disposition agency, which is subject to binding effect of judgment by not expanding the real psychological subject to the potential psychological scope, is justified by the principle of sincerity obligation.