부관에 대한 행정소송의 형식과 문제점

Abstract

This study has been examined from a critical standpoint the forms of administrative litigation for illegal additional clause that has been thus far discussed theoretically. Traditionally, the administrative law approach to additional clause was carried out according to three methods: ① whether to separate the additional clause from the profitable administrative act and designating it as the subject of litigation; ② under what litigation form is the subject realized; ③ under what standards in the litigation can the law court separate the additional clause from the main administrative act and announce the revocation of the additional clause alone. Although the main administrative act is profitable to the opposite party, if the additional clause has an invasive character, an effective remedy through the elimination of the additional clause can be searched for. However, additional clause excluding the burden can only be regarded as part of the administrative acts with additional clause, and this leads to the problem where the additional clause alone cannot be viewed as an administrative disposition that is the subject of a revocation litigation, and to this, theory tries to overcome the problem with the litigation of impure partial revocation. However, the litigation of impure partial revocation looks very much like the litigation of pure partial revocation, making distinguishing difficult. The plaintiff to the litigation of impure partial revocation is arguing that only the unlawful additional clause is illegal and seeks its revocation, but conceptually, the entire administrative act with the additional clause is viewed as the subject of the litigation, placing it in contradiction to the theory on the object of lawsuit of traditional revocation litigation. Also, according to the Supreme Court’s precedent on the object of the lawsuit for revocation litigation, the revocation of the additional clause alone, which is inextricably linked to the administrative disposition, cannot be recognized in a lawsuit. Therefore, litigation of impure partial revocation cannot be viewed as an effective means of remedy. Instead, if an illegal additional clause is added to the administrative disposition, it would be more rational if the people applied for changes for administrative disposition in which there are no additional clause, or there are changes to the content of the additional clause, and if the administrative agency rejects the changes, to propose a litigation for revocation regarding the disposition of refusal.