미국의 행정 ‘구제수단’(remedies)에 관한 연구 - 우리나라 항고소송의 소송유형과 관련하여 -

The basic remedy against unlawful administrative action is judicial review. A person aggrieved by agency action may challenge its legality in the courts. Then the reviewing court, before it judges the case on its merits, must answer the question, “is judicial review available?”. If the answer is no, the case should be dismissed and the plaintiff's alleged wrong would go unremedied. The questioning in availability of remedies functions as a door to the court. In Korea, however, a remedy that a court can redress is very limited and a court has denied to give other forms of relief which are not listed in 「Administrative Litigation Act」. This study was obtained by the awareness in limitation of Korean administrative court's in relation to its role in redressing remedies against unlawful administrative action. The administrative law in the U.S. has developed during its process of finding a compromise plan as well as facing the challenges between New Deal enthusiasts who were hostile to judicial control of administrative action and skeptics about agencies who saw judicial control as an indispensable safeguard of rule-of-law value. In other words, the background of the development of administrative law is based on the idea that judicial control must be made with respect to the remedial imperative while respecting the functions and responsibilities of public administration. The development of the U.S. administrative law is also reflected in administrative law remedies. The most common remedy for unlawful federal agency action in the U.S. is a petition for review filed, typically in a circuit court, pursuant to a provision of the statute that gives agency its authority to take the challenged action. This is called ‘special statutory review’. If a special statutory review proceeding is absent, the cause of action most commonly used is the one created by the 「Administrative Procedure Act」itself - ‘general statutory review’. This suit is filed pursuant to the general statutory provision conferring federal question jurisdiction on district courts, 28 U.S.C. §1331. Even if there are not statutory review provisions or if a statutory review is inadequate, the U.S. courts have created remedies based on the notion what may called the remedial imperative. This form of judicial control over executive action is called ‘nonstatutory review’. Nonstatutory review is created from the principle of U.S. constitutional system that the government is bounded by law, and the courts have a special role to play in the enforcement of those boundaries. Diversifying the types of relief in administrative litigation will have positive impacts or results on the satisfaction of the remedial imperative as well as the enforcement of the rule-of-law. Through the study of remedies in the U.S. administrative law, I focused on the methods of possibilities to improve the relief type in Korean administrative litigation.