醫療院 閉業方針 發表의 處分性과 取消訴訟의 訴의 利益

Abstract

In the 'Jinjoo medical center case', an administrative lawsuit brought against the governor of Gyeongsangnam-Do to revoke his announcement to close the regional Do-funded hospital and its following measures, the Supreme Court, unlike lower courts, found that such actions indeed constitute an administrative disposition, yet dismissed the case due to the absence of interest in lawsuit. Recently, the Supreme Court, traditionally interpreting administrative disposition very strictly and narrowly, has altered its position to broaden the subject matter of revocation litigation by mitigating the rigidity of its standards in determining whether such an action can be viewed as an administrative disposition. The Supreme Court's finding in this case that the governor's actions amount to administrative disposition seems to have been made in consistence with this context of broadening the contours of administrative dispositions. However, it is hard to agree with the Supreme Court's judgment on administrative disposition. The governor's announcement to close the hospital is difficult to be considered as an administrative disposition, because its concept requires a direct influence on citizens' rights and duties. This conclusion is also supported by the fact that the regional hospital of this case was ultimately closed not by the governor, but by the provincial assembly. Furthermore, it should be taken into account that the governor’s announcement is not a legal action, but merely an expression of one’s opinion. Meanwhile, the Supreme Court's decision to dismiss the case on the grounds that it lacked interest in the lawsuit, even though it regarded the announcement as administrative disposition, leaves room for criticism. The court suggested as its reason for dismissal the impossibility of restoring the hospital to its prior state, but it is necessary to broaden the concept of interest in lawsuit. From this viewpoint, it is worthwhile to refer to the interpretation on continuous litigation for affirmation of illegality(Fortsetzungsfeststellungsklage) in German administrative court law. In this case, necessity to clarify the legal state should be accepted as the interest in lawsuit.