가행정행위에 관한 법적 고찰

It is common and usual that an administrative act by an administrative agency is supposed to be ultimately effective at its issue while such administrative agency often finds it difficult to make a final decision in many events so that it defers such final decision and instead seeks provisional measures. Discussions regarding a provisional administrative act, as triggered by a judicial decision by the Federal Administrative Court of Germany (Bundesverwaltungsgericht), deal with such needs and cover the object in various aspects. A provisional administrative act is conceived of as an administrative act that has an interim binding effect only until there is final and ultimate one. Its major features are described that it has a provisional regulatory effect, that it subordinates itself to the procedure for the final decision, and that it is solely based on the approximate scrutiny on the relevant facts and laws. More emphasis is put with respect to its necessity on the area of beneficial administrative acts (Leistungsverwaltung) rather than on interfering ones (Eingriffsverwaltung). Discussions are actively given on the extent and feasibility to which a provisional administrative act would be permitted, in such areas as the conflicts between the administrative efficiency and judicial predictability and stability, the requirements for judicial ultimacy, and the restriction on withdrawal of an administrative act. Considering above features of a provisional administrative act, its proliferation in a flexible and forward-looking posture would greatly contribute to the satisfaction of the needs of the times.