행정처분의 취소소송에 있어서 처분사유의 추가ㆍ변경 - 일본의 학설 및 판례의 분석과 그 시사점을 중심으로 -

Abstract

The Supreme Court of South Korea strictly restricts the addition / change of the reason for disposition based on the identity of the basic facts regardless of the disadvantageous disposition or the disposition of refusal of application in general administrative litigation in connection with the addition. Furthermore, in tax suit, there is a rectification imposition system that is a type of addition / change of reasons for disposition other than suit. Therefore, it seems that there is no major problem even if the addition / change of reasons for disposition is narrowly allowed. However, the Supreme Court of South Korea has allowed a wide range of additions and changes to the reasons for disposition based on the identity of the disposition. Recently, it has been strongly argued that in Japan, it is necessary to discuss the addition / change of the reasons for disposition separately as disadvantageous disposition and refusal disposition. As can be seen in the Zushi City Information Disclosure Request Case, the judicial precedents allow a wide range of additions and changes to the reasons for disposition, and it seems that the subsequent lower court judicial precedents also follow this. Regarding the repetitive prohibition effect, there is a new res judicata theory that criticizes the special effect theory, which is a structure that allows re-disposal for reasons different from the reason of the judgment, and recognizes the true res judicata in the revocation judgment. It has emerged as a leading theory. However, in order for this theory to hold, it must be premised that a wide range of additions and changes to the reasons for disposition are allowed in a suit to cancel the disposition of refusal of the application. This is because res judicata cannot be exerted on the fact that it cannot be claimed in the previous suit and is not subject to trial, as can be seen in terms that are binding on the reasons that could be. I think that About disadvantageous disposal there is no big problem in deciding whether to add or change the reason for disposition based on the identity of the basic facts as in the current case law. However, after abandoning the concept of "identity of basic facts," which is the current judgment standard of the Supreme Court of South Korea, in light of the fact that the original relief system is an obligation-fulfilling suit against the refusal of an application, It seems necessary to create a new concept. And after approving the addition / change of the reason for disposal a little more broadly, it is invalid for the defendant’s administrative agency to re-dispose again without adding or changing the reason for disposal despite the fact that the reason for disposal can be addition. Because it conflicts with res judicata.