사법심사대상인 행정청 행위에 관한미국과 한국법의 비교연구

This article is to review and analysis the object of judicial review of agency action in the U.S.A. and Korea’s legal system by means of the comparative law study methodology. In order to this studying purpose, this article research the doctrine of judicial review of agency action made by federal judicial branches. Because the United States’ legal system is not similar to korea’s legal system, this article draws the notion of administrative act by means of analysis of judical case to the doctrine of judicial review of agency action. Section Ⅱ of this article research the presumption of reviewability of agency action. Most statue that authorize an agency to act also provide explicitly that final actions taken by the agency are(or not) subject to judicial review, but sometimes Congress is silent or ambiguous with respect to the availability of judicial review of a class of agency actions. In its landmark 1967 opinion in Abbott Laboratories v. Gardner, the Supreme Court announced that a presumption of reviewability applies to all agency actions. The Court attributed the presumption to the Administrative Procedure Act(APA). Section Ⅲ of this article deals with Finality, Ripeness, Exhaustion Doctrine made by the Supreme Court. Except in the unusual case in which some other statue makes a non-final agency action reviewable, APA §704 makes only final agency actions reviewable. The Supreme Court announced a two-part test for determining whether an action is final in its 1997 opinion in Bennett v. Spear. First, the action must mark the ‘consumption’ of the agency’s decisionmaking process. Second, the action must be one by which ‘rights or obligations have been determined’ or from which ‘legal consequences will flow’. The Supreme Court has long held that an agency action is not reviewable unless and until it is ripe for review. Until 1967, it was extremely difficult to obtain judicial review an agency before the rule was applied in a particular case because courts concluded that a rule rarely is ripe review unless and until it is applied in a patticular case. That situation changed dramatically with the Supreme Court’s issuance of its landmark opinion in Abbott Laboratories v. Gardner. The Court announced a new three-part test of ripeness. The Supreme Court has held that a party that is dissatisfied with an agency action cannot obtain judicial review of that action unless and until it has exhausted available administrative remedies. This is the judge-made exhaustion doctrine.