행정심판 재결의 기속력과 피청구인인 행정청의 불복가능성

The rule of law is practically achieved by judicial control over administration. In this respect, although the administrative appeals procedures is an administrative remedies system, it is natural in the viewpoint of the rule of law that the ruling of administrative appeals is subject to judicial control in that it is administrative. In the meantime, legal discussions on administrative appeals have been discussed only in terms of strengthening the validity of the ruling and securing the effectiveness of the administrative appeals, and there has been little discussion on the legitimacy of the ruling of administrative appeals. It is clear that administrative appeals and administrative litigation are basically an administrative relief system, that is, a system for relieving the rights of the people. However, administrative remedies system essentially comes from the rule of law. As a result, if administrative relief is itself illegal, the need for judicial control of it is also natural. In particular, the relief of the rights of the people is also a remedy for illegal acts, that is, legitimate relief. Therefore, if there is doubt about legality and legitimacy of ruling of administrative appeals, judicial control over it is a natural request. As a result of current law defamation, the Administrative Appeals Act does not have a provision prohibiting the administrative agency as an appellee from filing administrative lawsuits against the ruling of administrative appeals. and it has merely a regulation of binding force of rulings. In addition, it is doubtful whether the final procedural justice of the administrative appeals can be recognized only by the regulation of binding force of rulings. Moreover, in view of the precedent procedural nature of the administrative appeals, It is doubtful whether the same power as binding power of judgment of administrative litigation on the rulings can be recognized. Such legal problem of administrative appeals system becomes more serious when it is associated with the local autonomous legal system. While the constitutionally guaranteed local autonomy restricts control of unfairness, not control of illegality of self-government affairs of local governments, the current administrative appeals system is likely to violate the essence of local autonomy by generally controlling unfairness as well as illegality of self-government affairs. In conclusion, in order to substantively guarantee the rule of law, it is necessary to revise the administrative appeals system to allow the administrative agency as an appellee to disagree with the ruling of the administrative appeal. In particular, allowing at least disobedience of the local government as an appellee against the ruling of administrative appeal on the self - government affairs is an unavoidable constitutional requirement in relation to the local autonomous legal system.