抗告訴訟과 國家賠償과의 機能的 調和를 위한 試論

Abstract

In consideration of property continuance security in face of the phase of nontypical situation it is needed that we should elevate the practical use degree of Appeal Litigations. And the system of Administrative Remedies should be repaired to make it possible that State Compensation is managed more comprehensively than Appeal Litigations. Firstly, the Administrative Remedies should be divided into the two; one group which contains Appeal Litigations and State Compensation and the other ones which is destined to be treated according to the designated way via law or contract. it is unreasonable to divide them as Actions in Administrative Law and Compensation for Damage. The previous way of division enables the Administrative Remedies not to omit necessary remedies. Secondly, the leading idea of Appeal Litigations should be the continuance security of property. The concrete ways of fulfillment of it are the enlargement of Legal Interests in Administrative Law, the development of new unknown kinds of Appeal Litigations, the wide recognization of illegality conception in Appeal Litigations. Thirdly, the scope of remedies through State Compensation concerned with Reflexive Interests should be extended. It should be different from that of Appeal Litigations. Especially it is recommended that the requisite of protecting private inerests in duty performance is not necessary in the shape of State Compensation. it shoud be estimated as the reference material in measuring liability. Hitherto, the Actions in Administrative Law and Compensation for Damage which contains State Compensation and Compensation for loss has been discussed unconnectedly. Thus the Appeal Litigations and State Compensation have been treated unconnectedly each other in a degree. And There have been some deficits in the fulfillment of the constitutional idea of property continuance security in case of informal phase. By that, we have had no comprehensive consideration of the two. It is true that there have been some fragmentary discussions about the connection the two, but we have not taken into consideration the two mixingly in one. The two serves for just the one purpose of administrative remedy in case of informal phase. In this essay some problems of the two have been discussed. The Appeal Litigations should take the duty as the first remedies, and State Compensation should take the duty as the second ones. I hope that we could have great steps toward the legal theoretical development in Administrative Remedies via mixing the above two in case of informal phase.