행정법에 있어서 사인의 소송 및 집행의 역할 (Ⅰ)

The so-called “regulation by or through litigation” refers to the phenomenon that civil action such as damages(tort) or injunction in the US legal system functions as a substitute or supplement to the agency’s regulation. On the other hand, the regulation by private litigation is characterized by the fact that this phenomenon is a system through which the legislator deliberately allow private to litigate in order to achieve the regulated purpose. There are views that explain the background of the American system in terms of so-called ‘Adversarial Legalism’, ‘Law and Economics’, and ‘Institutionalism’. In the United States, there is a law-enforcement type of lawsuit, in which the administrative agency or the government takes a direct action, and thereafter the restrictions on future actions of defendant are put in a agreement clause, and the other type of lawsuit is filed through the incentives of the legislator. If the former is a typical type of litigation, such as a tobacco lawsuit, the latter is being extended to the entire US law, represented by Civil Rights Act. In the United States, there is a problem of avoiding procedural guarantees, transferring costs to consumers, and abusing lawsuits by entrepreneurial lawyers. This study analyzed the possibility of adoption of these legal institutions in Korea and the perspective of the critical evaluation according to the US law, and suggests the direction of devising of the system for the further study.