무효확인소송의 소익 ― 행정소송법 제35조 ‘무효확인을 구할 법률상 이익’의 의미 ―

Article 35 of the Administrative Litigation Act(Standing to Sue for Litigation for Affirmation of Nullity, etc.) provides: "A litigation for the affirmation of nullity, etc. may be instituted by a person having legal interests to seek the affirmation of effectiveness or ineffectiveness, or existence or non-existence of a disposition, etc." Recently Supreme Court has answered to the question whether the existence of a direct remedy such as enforcement proceedings under the presumption of nullity of administrative disposition should be considered in determining whether the "legal interests seeking the affirmation of nullity" under Article 35 of the Administrative Litigation Act exist. According to Supreme Court en banc [Full Bench] Decision 2007Du6342 delivered on March 20, 2008, the supplementary nature of a declaratory action for the affirmation of nullity is not demanded, and therefore it should be interpreted that the issue of whether a direct remedy such as enforcement proceedings presuming nullity of administrative disposition exists needs not be considered. The issue of acknowledging supplementary nature of a declaratory action for the affirmation of nullity is related to interpretation of "legal interests seeking the affirmation of nullity" of Article 35 of the Administrative Litigation Act. Thus, from the aspects of special nature of administrative litigation, a legal nature of a declaratory action for the affirmation of a nullity, its practical effectiveness, examples of foreign legislations, the possibility of its abuse, and strengthening of remedies for rights and interests, not to demand the supplementary nature of a declaratory action for the affirmation of nullity consists with achievement with the purpose of administrative litigation, reasonableness from the aspect of economics of legal action, and the recent trend of the Supreme Court Decisions.