행정처분의 위법성과 국가배상법상의 위법성

Abstract

In the administrative law field, when compared with civil law or criminal law, if the latter is adult, the former is the state of the child in the growing period, therefore the former shows a different growth day. In particular, the demand for administrative law is increasing rapidly in the modern society as the demand for national happiness is soaring, the history of the administrative law is short, but the development of the external legal system is like a child whose day is different as a result of that. The problem is that quantitatively and qualitatively fast - growing administrative laws can not grow properly unless they ingest the nourishment provided by civil and criminal law, which form the basis of legal theory. Recently, controversy has arisen over whether the illegality as a citation of a lawsuit in the administrative proceeding is the same as the illegality under the State compensation Act. Being possible to discuss mentioned problem from various perspectives, in this paper, it is examined illegality as grounds for cancellation in administrative litigation and illegaliy under the State Compensation Law from the viewpoint of illegaliy caused by human act. Namely, the illegalty is a unilateral assessment that the act as a cognitive activity of humane is against the legal oder. Although Tort is targeted at illegality, the former can be attributed responsibility or condemnation as a compensatory adjustment to what has come to the illegal. In this respect, the cognitive function such as intention or negligence is considered to have a dual nature that apply to both illegality and tort. The illegality of the administrative dispositon as a ground of lawsuit belongs to the objective legality as an act of the institution, regardless of whether or not it is recognized by the officer responsible for the administrative dispositon. Finally, the objective justification or legitimacy as the criterion for the illegality of administrative dispositon recognized by the case law, is on one hand a criterion for assessing the cognitive ability of officials in charge(Criteria for judging illegality) and on other hand the likelihood of expecting to act legitimately(Criteria for determining whether officials in cahrge are responsible).