항고소송에서 국가기관의 원고적격 (대법원 2013.7.25. 선고 2011두1214 판결 [불이익처분원상회복등요구처분취소])

Abstract

Cases have been increasing that a government agency wants to take action in a court against another government agency, dissenting a disposition or demand. In general, an executive or a government agency is not allowed to bring a lawsuit against another government agency since it has no status as a legal person. Accordingly, the Korean Supreme Court also has denied the admissibility to a party and the standing of a government agency in the appeal litigation. As a result, a government agency was not able to bring a lawsuit against another government agency. However, it is right for a government agency to be able to seek a remedy from a court if it has legal interests to be solved in a court regarding a decision made by another agency. In the Korean Supreme Court decision reviewed in this article the Court reasoned a government agency could bring a lawsuit against another government agency, holding that a government agency can be admissible to a party and has standing in the case at issue. This ruling by the Supreme Court is very important in that it gives an opportunity for a government agency to get relief to a right from a court. Nevertheless, the fact that a government agency can take action in a court only when it has no option other than appeal litigation, is not satisfactory. Rather, a government or an executive agency should be admissible to a party and have standing to bring a lawsuit against another agency whenever a remedy is needed, expanding opportunities to get relief to a right.