행정소송법상 소의 변경과 제소기간- 일본의 법제ㆍ학설 및 판례의 분석과 시사점을 중심으로 -

Abstract

Japan’s “Administrative Litigation Act” extended from 3 months to 6 months based on the day when it was learned that there was a disposition due to the revision of the “Administrative Litigation Act” in 2004 for the proceeding period of the revocation proceedings. At the same time, a new provision was established to extend even this when there is a justifiable reason(Article 14, Paragraph 1). There is also a judgment that recognized justifiable reasons based on this provision, and recognized that the request for change of the lawsuit filed by merging additional lawsuits after the litigation period had elapsed was recognized as being filed within the litigation period. In response, the Administrative Litigation Act of South Korea states that a revocation proceeding must be filed within 90 days from the day when it is learned that there is a disposition. Although they set a shorter period than Japan, they can be criticized for being inadequate for the relief of the rights of the people because they define this as an invariant period. By the way, the frequent change of lawsuit in connection with this are mainly the change of lawsuit between the revocation lawsuit. In this regard, on the other hand, the Administrative Litigation Act of Japan is related to limited matters, but it has a provision considered that the change of the lawsuit filed between the revocation proceedings is also considered to have been filed when the old proceedings were filed for the the new proceedings(Article 20). In the case of South Korea, there is no provision that the proceedings can be changed between the revocation cancellation lawsuit except in the case of the change of lawsuit due to the change in the disposition. In case of change of litigation due to change of disposition, so it has set a period of 60 days, which is shorter than the original filing period of 90 days. In response to this, the idea of depriving the people of the opportunity to relieve their rights cannot be erased. In addition, Article 19 (2) of the Administrative Litigation Act of Japan stipulates that in the case of additional consolidation of claims, the provisions for changing claims under the Code of Civil Procedure may be applied. Therefore, if the requirements required by the Code of Civil Procedure are met, the people have a choice by allowing changes in the lawsuit under the Code of Civil Procedure. Furthermore, if the old lawsuit complies with the filing period even if Article 20 of the Administrative Litigation Act is not applied by analogy in Japanese case law, even if the new lawsuit has passed the filing period of litigation. There are many judgments that it is no defect of comply of the filing period of litigation, when there are special circumstances that must be seen as having no defects. However, as seen in the Supreme Court of Korea’s decision on December 10, 2004, The Supreme Court ruled that in other words, “However, the Supreme Court of Korea, 2003du12257(December 10, 2004), said, “The compliance with the period for filing litigation shall be judged individually based on the time when an application for addition or change of the purpose of each claim is made. In the case of this case Since it is a request to change a lawsuit after 90 days have passed, it is judged that it should be regarded as an illegal lawsuit.” Therefore, I think that the trend of Japanese precedents examined in this study can give some implications in relation to the operation of the filing period of litigation system in our change of litigation in the future.