행정심판 제도의 구조에 관한 고찰

Korea’s administrative appeals tribunal system was initially established by its Administrative Appeals Law, but this system was rather considered as an obstacle to administrative litigation, as it was far from performing its function as a remedy for infringed rights and interests. Accordingly, Korea’s Constitution provided that “administrative appeals may be conducted as a procedure prior to a judicial trial … the procedure of administrative appeals shall be determined by the Act and shall be in conformity with the principles of judicial procedures.” In accordance with the constitutional provision above, the Administrative Appeals Act was enacted and its onformity with the principles of judicial procedures has been reinforced continuously through a few amendments since then. This paper provides, first, the meaning of the aforementioned constitutional provision, especially the phrase “in conformity with the principles of judicial procedures,” with a focus on the administrative appeals of the ‘guarantee of institution’ nature. It also analyzes specific forms of the Korean administrative appeals tribunal system today with this constitutional basis. Accordingly, the paper suggests that the Korean administrative appeals tribunal system should be halved into a formal administrative appeals tribunal including both general and special administrative appeals on the one hand, with other administrative appeal procedures on the other hand. This paper also provides that the former is unconstitutional unless it is in conformity with the principles of judicial procedures, while the latter does not require of such conformity, in that the former serves mainly as a remedy for infringed rights while the latter serves mainly as a check against administrative activities. Yet, both functions are harmonized to a certain degree in general, in that the former requires a link to administrative litigation while the latter requires a link to administrative procedures. Accordingly, this paper asserts that this structural analysis is valuable because it provides solutions to a number of confusing issues and problems raised thus far with regard to the administrative appeals tribunal system. Finally, this paper provides specific suggestions for improvements following the aforementioned analysis of the current administrative tribunal appeals system as its basis.