原告適格의 政治經濟學(Ⅱ)― 大法院의 客觀訴訟觀에 대한 分析的 批判을 中心으로 ―

Abstract

Korea has recently made efforts to reform administrative litigation system by drafting its amendment to the Administrative Litigation Act (“ALA”). The Korean Supreme Court's proposed amendment to the ALA expands the scope of an individual's standing to file an administrative lawsuit. While ALA currently provides that anyone with a “statutory interest” can file an administrative lawsuit, its proposed amendment changes the basis of standing from “statutory interest” to “legally just interest.” Currently, the standing to file an administrative lawsuit is determined by the statute that provides the basis of a plaintiff's cause of action. The Legislature currently determines who can file an administrative litigation under any given administrative act. However, the proposed amendment will permit courts to determine the scope of standing. If the proposed amendment to ALA is passed by the Legislature, the amendment may be interpreted as permitting the courts to consider relevant constitutional provisions and principles, judicial precedents, and even “jory” (reason of nature) not to mention the statute that authorized the administrative act. As a result, the amendment, if adopted by the Legislature, will authorize courts to determine who can file an administrative lawsuit. The proposed amendment is criticized in many aspects. The strongest criticism of the proposed amendment is that it ignores the constitutional governing structure by breaking the delicate balance of power distributed to the three branches, i.e. the Legislature, the Executive, and the Judiciary. The standing provision limits courts to their traditional role of protecting individuals and minorities against the imposition by the majority, and prohibits the courts from prescribing how the other two branches of the government should function. Under the amendment, courts themselves determine their subject matter jurisdiction. The next criticism of the proposed amendment is that courts are devoid of appropriate decision-making mechanism. By requiring a personal stake as a prerequisite to justiciability, standing has essentially played the role of a gatekeeper for courts determining the likelihood that a court will hear a certain matter. Standing determines by whom important public questions can be adjudicated; it thus affects policy formation, government accountability, and social participation in important and sensitive issues that affects a large portion of the public. The proposed amendment to the standing provision will open the floodgate to courts so that plaintiffs can file “public interest litigation,” i.e. litigation filed not to protect private rights but to vindicate what is desirable for the society. This is the reason why the amendment is deemed to move administrative litigation system closer to the “public law model”. (as opposed to private law model) However, the author believes that it is impossible for courts to determine what is the public interest in individual cases. In a democratic society, the public interest should be regarded as a result of process through which individuals' preferences are aggregated to form group's collective preferences. Courts cannot fairly and rationally aggregate individuals' preferences to make a group's collective preference. The public choice theory supports the second criticism. The public choice theory is “positivist,” focusing on an economically-based world of individuals and groups pursuing their own self interest, as well as special interest group domination of politics. Under the public choice view, the current standing provision (employing statutory interest test) would be necessary to maintain the separation of administrative litigation from the essential legislative function of government, the determination of “what is good for the society.” From this perspective, it is left to the sovereign to determine what is the public interest. Public choice theorists would suggest that the amendment distorts the judicial role. By opening the door to courts, courts would face questions of broad social, environmental, and political significance best left to the legislative and executive branches of government. Public choice theorists would argue that “what is desirable to the society” is a question of policy and that its determination by the judiciary is an exercise of legislative power when such choices involve political considerations. The author believes that the Supreme Court, along with all collegiate courts, is subject to a phenomenon referred to in the public choice literature as “cycling,” in which for any proposed outcome in a given case, an alternative exists that has majority support. Stare decisis is the public choice equivalent of a prohibition on motions for reconsideration of defeated alternatives, a common cycle-prevention technique, and stare decisis presumptively prevents collegiate court judges from taking the requisite number of pairwise contests over time to reveal cyclical preferences. In turn, stare decisis enhances the stability of court judgments. While stare decisis improves the rationality of collegiate court decision making, it also produces an unintended and deleterious byproduct. With stare decisis in place, the evolution of collegiate courts', especially the Supreme Court's doctrine will depend, to a large extent, upon the order in which cases are presented or, in the language of public choice, will be “path dependent.” Stare decisis thus provides interest groups with strong incentives to manipulate the order in which cases are brought before the Supreme Court and lower collegiate courts. The current standing provision substantially ameliorates the problem that stare decisis creates. The standing provision does so by presumptively preventing ideological litigants from opportunistically manipulating the critically important path of case decisions in the Supreme Court and in lower collegiate courts. In summary, the author believes that the role of courts in “public interest cases” should be limited to traditional private law function of deciding bi-polar disputes and would look askance at any liberalization of the traditional standing doctrine that would blur dividing line between the legislature and the judiciary.