항고소송에서의 조정(調停)에 관한 연구 －제정 행정소송규칙에서 도입된 조정권고 제도를 중심으로－

Abstract

Mediation is a preferred method as an alternative dispute resolution for the quick and efficient means of public and administrative conflicts that arise in a variety of complex ways in modern society. However, in the case of administrative litigation, the purpose is not only to resolve the parties' disputes, but also to ensure the adequacy of administration, so the principles of rule of law in administration must be observed. There are no explicit provisions of mediation in the Administrative Litigation Act, and the Judicial Conciliation of Civil Disputes Act does not apply mutatis mutandis to administrative litigation. There has been controversies whether mediation is possible in administrative litigation, especially in appeal litigation. Although there is a point of view that denies the possibility of mediation in appeal litigation, the view that it is allowed within certain limits, such as not harming the principles of rule of law administration, is influential. Regardless of this academic discussion, in practice the court has been using a method called judicial recommendation for mediation in appeal litigation. The court recommends that the administrative agency make a change by canceling or reducing part of the disposition, and when the administrative agency makes a change accordingly, the plaintiff withdraws the lawsuit. Although this method has no explicit provisions, it has been used in practice because it serves the function of resolving the rigidity of laws, providing citizens with prompt relief for their rights, and promoting one-time resolution of disputes. Due to this practical necessity, several amendments to the Administrative Litigation Act have attempted to introduce a settlement recommendation system in appeal litigation. The amendment to the Administrative Litigation Act proposed so far was intended to give binding force to the parties by giving it the same effect as a judicial settlement once the decision to recommend settlement is confirmed, but it failed to be introduced. In the end, the enacted Regulation on Administrative Litigation established explicit provisions for the recommendation for mediation that was operated in court practice, although it does not have the effect of binding the parties or settling at trial. Although there is a limitation in that it does not bind the parties even if a recommendation for mediation is made, it can be evaluated positively as it meets the practical need to resolve the rigidity of laws and resolve disputes one-off. When operating the recommendation for mediation introduced in the Regulation on Administrative Litigation, it is necessary to exercise caution as it will be difficult for the parties to be convinced if a decision is made with a different conclusion than in the recommendation, or if there is an error in the description of the reason or necessity of the mediation. Caution should be exercised as there is a risk that the dispute may be prolonged if the parties object, which may run counter to the purpose of introducing the system. It should also be taken into consideration that the explanation of the results or reasons for the recommendation for mediation may serve as a precedent in similar cases. Additionally, when conducting a date of hearing, it is necessary to proceed with keeping confidentiality, taking care to prevent personal information or trade secrets of the parties, interested parties, or witnesses from being leaked. Meanwhile, in the future, it would be desirable to recognize binding force on the parties through revision of the Administrative Litigation Act in terms of the effectiveness of the system and one-time resolution of disputes. In addition, currently, recommendation for mediation can only be made by the presiding judge ex officio, but there is a need to recognize the right of litigating parties to apply for as well. Also, it is desirable to include allowing interested parties and relevant administrative agencies to apply to state their opinions even if they do not participate in the lawsuit, and allowing the mediation to be resolved by a separate, independent and neutral mediator rather than by a judge of competent jurisdiction. Also, it is desirable to improve the hearing procedure so that it can be conducted privately and a duty to maintain confidentiality can be imposed on parties, interested parties or witnesses at the hearing. Through the operation of this system and future improvements, it is expected that the purpose of introducing the system, which is to quickly provide relief to the people's rights and interests through one-off resolution of disputes, will be achieved.