의무이행소송 도입을 위한 법정책적 과제 - 독일에서의 논의를 참고로 하여 -

The mandatory performance litigation contained in the amendments to the Administrative Litigation Act of the Ministry of Justice in 2013 are expected to contribute to the rapid and substantive relief of the rights of the people, and there is a lot of controversy and criticism about the concrete contents. For the effective operation of the systems related to the mandatory performance litigation, there are some deficiencies when examining the German doctrines and judicial precedents that introduced the mandatory performance litigation system early on. First of all, the object and scope of trial should not be limited to administrative measures but also include facts acts and administrative legislation. And should allow the other party who has been disadvantaged to file an obligation to add an additional clauses to limit the effect of the disadvantageous measures. Also it is necessary to enlarge the scope of trial by opening not only the mandatory performance litigation based on a refusal or omission of the application. There is a conflict between the time of measure and the time of judgment in regard to the base point of judging illegality in the compulsory performance lawsuit. Despite there is a conflict between the time of measure and the time of judgment in regard to the base point of judging illegality in the mandatory performance litigation, in principle, the statutes and facts states at the time of judgment must be the basis according to the general theory of the general implementation litigation because the object of trial of the mandatory performance litigation is not the rejection of issue of the administrative measures or illegality of omission but the right of claim of plaintiffs to the duty of the administrative agency to issue the requested action. Regarding the settlement recommendation decision, it should be carefully managed so as not to infringe the right of the parties to the trial on account of the abuse of the excessive settlement recommendation decision focusing on the convenience of the court in despite of the advantages of autonomous and end-to-end settlement among the parties to the dispute. Finally, even if an action for nullity is filed against the measure of refusal persuant to the current law, the applicant will not be protected simply by suspending the execution of the measure of refusal until the court's final judgment. In the case of litigation for affirmation of illegality of omission, a preliminary remedy system such as suspension of execution is not meaningful because there is no object to suspend the enforcement or enforcement. Therefore, if there is a need to maintain the position continuously until the outcome of the lawsuit, the court may, in accordance with the judgment of the court by preliminary injunction system, impose an obligation on the administrative office to measure pursuant to the application of the party for the promoting substantial relief of rights of the people. But, in order to prevent the abuse of the preliminary injunction and the difficulty of law enforcement accordingly, the requirements must be strictly set.