취소소송의 대상에 대한 의문과 재검토 -인용재결이 있는 경우의 논의 현황을 중심으로-

Abstract

The main clause is Article 19 of the Administrative Litigation Act to regulate an object for revocation litigation. This provision states, “The disposition, etc. shall be subject to a revocation litigation: Provided, That in case of a litigation instituted to seek the revocation of an adjudication, it is permitted only when a reason exists that the adjudication itself has a proper illegality.” The prevailing opinion on Article 19 is the rule of the initial administrative action. Whereas Adjudication could only become an object for revocation litigation when there is its own illegality. However, it seems that the dominant opinion on Article 19 cannot play an adequate role in the concrete discussion on the problems of the object for revocation litigation in the case of Adjudication existing. This paper analyzes the processes to confirm the object for revocation litigation under a situation in which adjudication exists. To solve the doubtful points, this study attempts to seek standards to define the object for revocation litigation, and try to reinterpret the meaning of Article 19. It especially reestablishes the status of the meaning of “only when a reason exists that the adjudication itself has a proper illegality” of Article 19 to finally confirm the object for revocation litigation in the case of Adjudication existing. This study also seeks to carry through the basic standard, Administrative Disposition, to decide the object when Adjudication exists and take the position to supplement the imperfections in the discussion of the object by using legal requirements for a lawsuit, litigation procedures, and effect of judgement.