판례를 통하여 본 ‘처분’ 개념의 확대

Supreme court interprets the concept of disposition according to the cases, stressing out the function of protection of Persons Right in appeal litigation. It also gives specific consideration to the diversification of administrative action. Precedent defines the disposition as an ‘action giving practical impact to the duty and right of public as a law enforcement regarding concrete facts enforced by an administrative agency which represents a subject of governmental authority.’ and at the same time they saw an essence of disposition to ‘whether it gives direct impact to the duty and right of public. Therefore, without any legal evidence, if it takes the form of administrative disposition which obviously gives negative impact to the public, and counterpart recognizes it as a disposition then its dispositive nature could be acknowledged under the context where measures for eradicating negative impact, or anxiety are necessary. And necessity of lawsuit, or whether it is an effective means or not is decided in consideration of the level of legality, consciousness of right, and attitude of administrative authority in regards to its action. Such an attitude has been understood as an endeavor for widening opportunities to the relief of right, but there is criticism that it lacks consistency and confusing. Especially, if it becomes problematic in cases of non-powerful factual act(Realakt) like suggestion, recommendation and rectification, it is not clear which cases acknowledge the disposition seeing whether it has practical legal force. Also, if subjective sentiment becomes one of the component for determining disposition, disposition could be acknowledged if it gives impact to the duty and right in the future, despite the fact that presence of factual act does not accompany the effect likes restriction of rights. However, precedent takes a negative attitude. With an accumulation of precedents, I expect that a yardstick of judgment would be more sophisticated and clarified.