의무이행소송의 도입과 그 방향

Abstract

The litigation for mandatory injunction can be an ultimate remedy against administrative agency's omission or denial of lawful adjudication (order, license, permit etc.) which is required under applicable law, while the existing remedies under the present Administrative Litigation Act, that is, litigation for revoking denial or confirming the illegality of omission are restricted ones. Even though it has been a controversial issue since the 1984 reform of the Administrative Litigation Act, the mandatory injunction has not been introduced as one of the statutory remedies under the Act. And the Supreme Court of Korea has denied to review the claim for mandatory injunction either through the interpretation of the statutory delegation of the Administrative Litigation Act or under the natural boundary of judicial power. The urgent need to adopt more direct and fundamental remedies in the changing environments of modern administrative state had resulted in that the 2004 reform proposal of the Act from the Supreme Court and the 2007 government's amendment proposal of the Act prepared by the Department of Justice, The 17th and 18th Congress, each of which was supposed to deliberate the reform proposals, did not pay attentions to the bills enough to make progress. Recently the Department of Justice initiated again the reform of the Act, where the mandatory injunction would be the most important one among new institutions. If the litigation for mandatory injunction will be included in the Act, the present form of litigation seeking confirmation of the illegal omission of administrative action should be repealed, but the litigation seeking revocation of the denial should be maintained. It is not necessary to bring both of the litigations for mandatory injunction and revocation of the denial. It is, however, necessary to make judgments of mandatory injunction and revocation of the denial. To decide in the case of mandatory injunction, courts need to review in more inquisitorial manner and decide the illegality of the administrative decision as of the closing day of trial. There can two types of mandatory injunction: one is to order a specific administrative decision which is cleary required by the applicable law, and the other is to order reopening of the administrative decision-making process using the remaining administrative discretion respecting the judgments. And it is also necessary to establish temporary injunction with it.