The Need for A Mandamus-like Remedy in the Republic of Korea

Abstract

The Republic of Korea, like many young democratized constitutional republics, faces the challenge of having placed its democratic institutions on top of a bureaucratic structure and culture that throughout most of its modern history was largely constructed to serve non-democratic rulers, whether Japanese colonialists or indigenous authoritarians, who had every reason to mistrust the people and engage in “efficient” governmental practices that benefited the state but generally ignored rights, freedoms and even basic privileges of the people. Thus, a key theme in the democratization of Korea has been, and still needs to be, that of administrative reform, to make government agents responsive to the democratically elected public servants and observe the rights of the people, even in common administrative matters. Despite the onset of democracy, the Korean administrative state is relatively strong and has shown a tendency to resist reforms. This paper analyzes key administrative litigation remedies in England, the United States and Germany. It uses those leading democratic common law and civil law jurisdictions and bases for establishing international norms with respect to basic administrative litigation remedies that should be found in a democratic state that upholds basic notions of the rule of law. It then overviews Korean administrative litigation remedies, noting its strengths and weaknesses. Most troublingly, while the Korean Administrative Litigation Act(the “ALA”) specifically provides that certain omissions or inaction(부작위) by Korean administrators provide a basis for judicial appeal, the remedies available in such actions do not provide a clear path towards rectifying the inaction. In Korea, no remedy that can compel a government agency to implement its legal duties, like common law mandamus or German Verpflichtungsklage, is available under present laws and court rulings related thereto. In order to fully protect the rights of Korean litigants under the ALA, Korea should adopt a mandamus-like administrative litigation remedy, similar to those found in England, the United States and Germany.