행정심판제도의 헌법상 의의 ― 헌법 제107조 제3항의 해석과 행정재판권의 이해를 중심으로 ―

There is a need to understand how the administrative appeals system relates to the jurisdiction system and to other branches of the government in the perspective of the principle of separation of power. We can also gain a better understanding of our own administrative appeals system in various angles by looking at the status quo of other countries. The functions to be implemented through administrative appeals are very much dependent on the choice of legislators in consideration of the political landscape and historical background of each country. In other words, in each country, where to place the administrative jurisdiction depends upon not only logical necessity, but also circumstances and outcome. Administrative jurisdiction is usually placed either under the executive branch or the judicial branch, according to how power is separated between government branches in each country. Administrative jurisdiction has served to protect the rights of the people and has acted as a means for administrative self-control. However, when considering the process of how administrative jurisdiction was first created and later differentiated in each country, emphasis should be placed on the fact that administrative jurisdiction served as a means to control power and strike a balance among government branches. In Korea, administrative jurisdiction is dispersed between the judicial branch and the executive branch, but nevertheless, when considering the fact that the final administrative jurisdiction lies at the Court, and that the Administrative Appeals Commission stands as an independent institution, it can be said that the Korean system was based upon the American system of administrative law. Administrative appeals in Korea is understood as a jurisdiction belonging to the executive branch, and thus, the current status in which Article 107(3) of the Constitution of Korea, which is considered the constitutional basis for administrative appeals, is stipulated under Chapter 5(The Courts) of the Constitution, must be amended. Moreover, although Korean legislators have stated that the objectives of the administrative appeals system is ‘to relieve citizens from the infringement of their rights or interests’ and ‘to achieve a due operation of administration,’ in practice, they have stressed the former. This has been pointed out by many preceding research papers, but nevertheless, this study attempted to shed a new light on Korea′s administrative appeals system by identifying the mechanism behind the formation of administrative jurisdiction through looking into the relationship between judicial power and jurisdiction in each country.