행정입법의 처분성 인정기준에 관한 검토

Abstract

The Supreme Court Decision 2019Du48905, decided in December 1, 2022, held that the anti-dumping duty rules, which had been deemed as an administrative disposition since 2005, were not able to be litigated in administrative recourses. This decision reinforces the Supreme Court's trend of recognizing a very narrow scope for judicial review on administrative regulation. This paper argues that the decision is unjustified for the following reasons. First, the decision is not consistent with precedent cases. According to the precedent cases, an administrative regulation constitutes an administrative disposition if it has a characteristic of regulating citizen's specific rights and duties or affecting their legal relations by itself without any further intermediate executory action. Furthermore, if an administrative regulation regulate the subject in a concrete way, the Supreme Court tends to acknowledge it as an object of judicial review. Second, if the anti-dumping duty rules are not subject to judicial review, foreign exporters would face great difficulty to find adequate means to protect their rights. Foreign exporters, who are granted procedural participation rights under the Korean duty laws, are undoutedly direct stakeholders in the anti-dumping regime. However, if the anti-dumping duty rules would not able to be litigated in acministrative actions, they cannot effectively challenge the decision. If domestic importers are unwilling to take on the risk of litigation and refuse to import, foreign exporters have virtually no means to challenge the anti-dumping duty rules. Third, denying the disposability of anti-dumping duty rules may lead to a violation of Article 13 of the WTO Anti-Dumping Agreement, which imposes an obligation to ensure prompt judicial review of administrative actions that constitute anti-dumping measures. Developing proper judicial review system on administrative regulation is an important task for administrative law in Korea. However, despite extensive and thorough discussion, there has been no legislative improvement in the Administrative Litigation Act over 20 years. It is necessary to ensure adequate and timely remedies to challenge the legality of administrative regulations within the given framework.