위헌·위법한 법규에 근거한 처분의 하자의 정도 판단기준 재검토: 판례의 태도에 대한 비평을 중심으로

Abstract

The Constitutional Court has been making the Decision on Unconstitutionality since January, 1989. Subsequently, the Supreme Court has started applying the Theory of Seriousness and Obviousness to judge the degree of illegality of a disposition since 1994. This attitude of the Supreme Court has been applied by courts to treat a disposition based on administrative decrees, regulations and the local government’s ordinances. So far, the judicial precedents carry on using the Theory of Seriousness and Obviousness to decide the degree of illegality of a disposition based on an unconstitutional or illegal law or regulation. In addition, the judicial precedents admit the Seriousness of Infringement of a Right, but the precedents deny the Obviousness of Infringement of a Right. Namely, the cases consider the degree of illegality of a disposition based on an unconstitutional or illegal law or regulation as a reason for cancellation. There are many precedent studies on the stances of the judicial precedents. The studies criticize the decisions of the judicial precedents for reasons such as these points: when the precedents decide the degree of illegality of a disposition based on an unconstitutional or illegal law or regulation, ① the cases put the Obviousness of Infringement of a Right as one of the prerequisites for nullification of a disposition. ② The cases deny the Obviousness of Infringement of a Right. Those opinions of precedent studies above can be evaluated as follows: They set their aim to extend the range of judicial relief for a right. For that goal, they attempt to relax the prerequisites for nullification of a disposition. This study also partially adopts some viewpoints of precedent studies. However, this research mainly focuses on ‘the differences of illegal structures’. In other words, this paper divides illegal dispositions into ‘ones following laws or regulations’ and ‘ones not following laws or regulations’. This study especially categorizes the dispositions which follow laws or regulations into three types. The first type is the disposition following an unconstitutional law. The second type is the disposition following an unconstitutional or illegal regulation. The last type is the disposition following an unconstitutional or illegal ordinance of a local government.