행정입법부작위에 관한 행정소송 심사방식의 재정립

Abstract

Administrative legislative omissions were previously the subject of the Korean Constitutional Court. Recently, the Korean Supreme Court has been actively examining administrative legislative omissions. The first method used by the Supreme Court was to make up for the flaws through a direct interpretation of the law. The second method used by the Supreme Court is the normative control approach. The normative control approach means that the court makes the general and abstract rules invalid in the course of the judicial review of the specific administrative adjudication which applies the administrative rule in question. The 2021 Korean Supreme Court ruling makes clear the pros and cons of both methods. The use of the first method creates the problem of infringement of the authority of the administrative legislators. The second method reduces the effectiveness of the remedy. This is because the judgment does not make the law favorable to the people, and the granting of rights under the law is not made only by the judgment. And the above two methods is limited to use for imperfect omissions. Therefore, complete omission is not subject to the general court. This has been examined so far by the Korean Constitutional Court. In order to solve this problem, it is necessary to introduce a third method in addition to the above two methods. The general court may determine whether such an answer by the administration is valid if the administration says there is no administrative legislation and does not grant the right. In that judgment, it confirms that the omission is illegal and that the administration is obliged to make the administrative legislation. And these judgment of the general court is given the binding force of judgment and indirect compulsion. Through this method, the general court may directly judge the failure of the administration to make administrative legislation and the remedy of rights in such judgment can be assured. Furthermore, the application of this method allows the general court to examine both incomplete and complete omissions. On this basis, judicial review of administrative legislative omissions may be unified into the general court.