협의의 소의 이익과 집행정지에 관한 소고

There have been many researches and discussion on the provision of the 2nd paragraph of article 12 in current Administrative Litigation Act, but there yet remains a room for re-discussion about the nature of administrative litigation in the view of the expansion of the recovery of individual right through the right of access to court on the basis of practical rule of law system. This thesis consists of the following contents: First, in chapter II, regarding the provision of the 2nd paragraph of article 12 in current Administrative Litigation Act, I examine the meaning of 'the interest in law' provided in the 1st and the 2nd paragraphs repectively of the above article, and the nature of revoke litigation and 'the interest in law recovered' in the 2nd pharagraph of the same article. Second, in chapter III, I examine the real interest in the process after the validity period of punitive administrative disposition regarding the issues in the changed judgement of Supreme Court of Korea(2006. 6. 22. 선고 2003두1684). Finally, in chapter IV, I re-discuss the need to widely recognize the suspension of execution by alleviation of the requirements and to introduce the preliminary disposition system applied to the overall administrative litigation as the effective pre-recovery method. In addition, on the basis of practical benefit, there is some reason for maintaining the non-suspended principle in the current law system which originally stemmed from the superiority of administrative power. Therefore, we need to interprete the related provision to the strict and exceptional requirements to render suspension of execution in alleviative manner, which can enhance the rights of people. On the other hand, on the basis of the equality between the civil and administrative litigation, I suggest the reasons to introduce the principle of suspension of execution as the future statutory policy like German related statutes. In the decision about the interest of right protection, when we stick to the term 'the interest in law' too strongly and focus on the judgement whether it relates to citizens directly or not, it can result in the narrow interpretation of the interest of right protection. In particular, if the administrative body requires the other party to appeal the illegality of the precedent punitive disposition after the following aggravated punitive disposion, it can be defined the judicial negativism which avoids practical resolution of dispute, for the interest of right protection can not be accepted when the complainant can not recover the damange. Taking into account the recent German partly abolished suspension principle and the consistent exercise of administration based on the harmony between the public interest through preventing abuse of rights and the private interest, it is somewhat necessary to maintain the current non-suspended principle system. But the current exceptional nature of the suspension decision needs to be changed for the expansion of the remedy of individual rights on the basis of the Constitution, specifically article 27 thereof, which provides the practical and comprehensive right of access to court. In brief, the strict requirements of the law must be alleviated. And in such case, the objective standards in relation to the suspension requirements previously suggested by the practice field need to be satisfied.