중국 행정소송상 변경판결과 관련 법리 검토

This paper is related to the judgment of modification in Chinese Administrative Procedure Law. The judgment of modification is that the People's Court alternate administrative act in judgment. If the judgment of modification was confirmed, litigant can not take proceedings, also administrative body revert to judgment and can not produce new administrative action. In theoretical realms, the judgment of modification will apply to the realm of administrative non-exclusive jurisdiction, the realm of legal provision, and the realm of subjective rights of plaintiff. Realms of subjective rights of plaintiff concludes the right of claim in defensive rights, the right of claim in presentation, and the right of claim of discretional disposition with no defects, etc. But, even though exist of theoretical application realms, in Chinese Administrative Procedure Law article 54, the judgment of modification be approved in the state of obviously unfair administrative punishment. So, many researcher maintains that enlarge application scope of judgment of modification. And, about enforcement of judicial power to modify administrative acts, there exists three opinions, which is negative opinion, positive opinion and limited-positive opinion. But, Chinese Administrative Procedure Law adopted limited-positive opinion. In Korea, the Ministry of Justice already prepared the amended draft of Administrative Procedure Law in 2007year. The amended draft conclude the type of litigation for performance of obligation. And moreover, we will require various types of litigation in future. So, through the research and examination type of litigation, we must enlarge it's application realm. Especially, in Administrative remedy, adoption of action for the alternation of legal relations or adoption of judgment of modification will serve people many benefits.