공법상 금전급부청구권과 관련된 소송형식

Whereas administrative organs can require payments of individuals, individuals can, vise versa, claim to state monetary compensation, e.g. claims for overpaid or wrongly paid taxes or quasi-taxes, claims for damages due to illegal use of administrative power, or claims for compensation despite legal use of power. Individuals can also enjoy special rights stemmed from statutes regarding social security. Individuals are to make choice of the type of proceedings, pursuant to the nature of cases, between administrative litigation proceedings - which covers both cancellation proceedings and party proceedings - and civil proceedings. An administrative act performed by an administrative organ can theoretically be classified as either an act of public authority, which can be reviewed through cancellation proceedings, or an act without authority, which can be dealt in party proceedings, but aforementioned classification is sometimes not appropriate because of the ambiguity of the nature of an administrative act. This ambiguity raises a question whether cancellation proceedings and party proceedings can be tried in one batch. It seems feasible for a plaintiff to apply for cancellation proceedings against administrative organ and to apply for party proceedings against state at the same time in identical case, in which court can first order cancellation of the administrative act and then payment to the plaintiff. With regard to administrative litigation proceedings, the most significant criteria to differentiate cancellation proceedings and party proceedings is the way how the right of plaintiff arises. When the specific right of plaintiff does not derive from a statute itself but from the specific administrative act of administrative organ, i.e. full or partly admission of a right, and an administrative organ rejects the admission of the right, the plaintiff can demand the rejection be cancelled through cancellation proceedings. In contrast, when a specific right of plaintiff can be construed directly from a statute, regardless of an administrative act, the plaintiff is obliged to take party proceedings against the state circumventing administrative organ. Jurisprudence of the Supreme Court of Korea regards the nature of claims for overpaid or wrongly paid taxes and claims for damages against state as private ones, which would mean that the proceedings for both claims should be civil proceedings. However, since the grounds for both claims are either void or invalid impose of taxes or illegal use of administrative power and the claims started from the territory of public law, the claims are to be tried under party proceedings. Numerous statutes provide for the claims for compensation from state despite legal use of its power, general statute governing principle of the claims is not enacted. As a result, the processes of compensation or procedure of litigation of each separate claims for compensation must be dealt with case-by-case base. The judgments of the Supreme Court can be a good reference, with a distinct limitation that the amendment of statutes is a frequent event and that the structure of each claims for compensation is altered often. It is necessary to great extent to scrutinize statutes before applying judgments to any specific case.