행정심판의 헌법상 근거— 헌법 제107조 제3항의 해석을 중심으로 —

This paper is intended to legally recharacterization the constitutional status of the administrative appeals of Korea as the constitutional procedure by newly reinterpreting the meaning of the article 107-3 of the Constitution of Korea, which is one of the constitutional provisions for the administrative appeals of Korea. In respect of interpreting the constitutional grounds regarding the administrative appeals of Korea, without limitation to the article 107-3 of the Constitution, it is necessary to interpret with a relevancy to due process of law in the article 12 of the Constitution, as administrative appeals have a status as a kind of procedure, with a relevancy to the right of access to courts in the article 27 of the Constitution, as administrative appeals are a procedure prior to a judicial trial. In this respect, the article 12, 27, 107-3 of the Constitution may be possibly considered as the 3 triadic provisions of the Constitution regulating the administrative appeals in Korea. More basically, the government organs fundamentally have a duty to serve the constitutional rights of all citizens. The administrative appeals procedure shall observe the principle of due process of law in the article 12 of the constitution and thus have a legal duty to ensure citizen’s right of access to courts substantially as provided in the article 12 of the constitution. In this respect, the article 107-3 of the Constitution - which is a constitutional provision of direct ground of the administrative appeals - shall not serve as the legal ground in order to argue about the question of the essential prerequisite or random procedure of administrative appeals prior to a judicial trial, in connection with the requirements for filing an administrative litigation. Based on the new interpretational methodology mentioned above, in interpreting a specific meaning of the article 107-3 of the Constitution, which is a constitutional provision of direct ground of administrative appeals, it is necessary to systematically analyze and newly reinterpret, the following meanings : the administrative appeals of a procedure prior to a judicial trial, the limits of statute reservation and legislative formation related to the problems of administrative appeals, and the quasi-judicial procedure which shall be in conformity of the principles of judicial procedures, etc., especially not limiting to a level of the act, but elevating the status of the administrative appeals of Korea as the constitutional level. In conclusion, the administrative appeals of Korea can be said to have originality and identity in that they have a constitutional status as the constitutional procedure on a direct legal basis of the article 107-3 of the Constitution and a legal nature of administrative and judicial procedure at the same time under the Constitution.