附款 統制로서의 진정일부취소소송 활용에 관한 小考

Abstract

Administrative act is not so elastic through its strict standardization. Administrative agency should choose one to do or not to do, and there is no way but the two. This situation is not so useful and efficient to both sides, administrative agency and its counterpart. Supplementary clause on administrative act can tenuate its strictness and helps administrative act escape from too excessive standardization. But we should be alerted to the abuse of supplementary clause by administrative agency’s side. Thus the legal control of supplementary clause on administrative act is recommended. Following to our case law, only burden among supplementary clauses is regarded as an independent ‘declaration of will' seperated from its main administrative act and could be suited and sentenced alone, but the others not. Afterwards, as society develops forwards the more supplementary clauses will get their independence from main administrative act and be treated as an administrative act. Before 1991, all the supplementary clauses had been considered that they should be treated legally always with their main administrative act, but since 1991, burden could have been treated independently from its main dministrative act. And the same flow would go on. The above flow has been spreading theoretically by the name of ‘lawsuit of impure partial cancellation’ against the view of case law. But it is doubtful whether the above form of lawsuit could be possible or not by the present legal system. In ways of interpreting law to control supplementary clause, we could take the three. One is to grant ‘partial cancellation’ by the possibility of seperation from its main administrative act, another is to grant ‘partial cancellation’ through the recognition of its independent presence, the other would be to grant ‘partial cancellation’ by giving ‘character of disposal’. In legistlative way, the legistlation of lawsuit for performance of obligation would be the most useful and efficient. In short, it is the most useful and efficient to grant every supplementary clause ‘character of disposal’ to control it, which enables us to make use of ‘lawsuit of pure partial cancellation’. Also it means that all supplementary clauses could be treated as an independent ‘declaration of will’ and be regarded as an perfect object elligible for legal sue. If so, ‘lawsuit of pure partial cancellation’ to all supplementary clauses could be possible. After that, the remaining point would be the problems of validity of supplementary clause in relation with the main administrative act in side of substantial law, which could be treated in main dispute in the name of ‘possibility of independent cancellation’. However, it is strongly recommended that lawsuit for performance of obligation should be legistlated to do that.