권력적 사실행위의 처분성 ― 대법원 2016. 8. 30. 선고 2015두60617 판결 (진주의료원 사건) ―

This case has the background of political controversies over the public health policy related to the closure of the local public medical center. The role of public institutions can not be easily denied from the point of view of their profitability, since their existence is based on public interest. However, it should also be considered that private hospitals in South Korea spread out widely and fulfill considerable public functions. This study deals with some important issues that are relevant to the science of administrative law in this case. First of all, what is the nature of the administrative decision to shut down Jinju Public Medical Center. Specifically, it is a matter of whether this decision is a powerful factual act(Realakt, schlicht-hoheitliche Verwaltungshandeln), or whether there is an order to accept as an administrative act(Duldungsbefehl als a Verwaltungsakt), or whether there is no such an act, but just a kind of policy announcement. Second, which one can be the object of administrative litigation between the administrative decision to close the center, several measures and the ordinance of local government following this decision. Third, the illegality of the decision and the ordinance judged on the merits of this case will be discussed in this paper. For examples, whether the governor is an unauthorized person for the closure of that center, whether there is procedural or substantive flaws in the ordinance. Furthermore, it should be examined whether the defect of the preceding act of the closure is succeeded by the follow-up act of the ordinance. Fourth, as a collateral question, whether rules of Administrative Procedures Act could apply to an internal administrative decision, if this decision were considered as the object of administrative litigation(Verfügung). It is meaningful that the court in this case ruled that the powerful factual act is acknowledged as the object of administrative litigation, and then the administrative decision should be treated as a character of the object. However, there are aspects that have been determined too hastily, such as interests in the litigation, the scope of review on the merits of the case, the issue of state tort liability, etc. We expect the development of judicial precedents taking a practical approach regarding the effective remedy and the adequate administrative control.