리스크 사회의 시각에서 본 행정 부작위의 통제수단

Modern society contains a lot of risks due to the industrialization and development of science and technology. In this regard, the state needs to protect the rights of its citizens from risks, but in many cases the state doesn't manage the risks. The rights of citizens are constantly infringed not only by active actions of the administrative agencies, but also by their omissions. While due to the administrative opportunism attitude and the tendency of perceiving the individual interests received from the exercise of public power as reflective interests, current law has its limitations in controlling the administrative omission. This situation is even more pronounced in the area of risk. The methods for controlling administrative omission include the administrative appeal, Litigation to Confirm the Illegality of Omission, Litigation for State Compensation and Constitutional Complaint. However, in order to prevent risks from occurring, it is necessary to have effective ex-ante management. Moreover, although in order to fully remedy the infringements caused by administrative omission, Litigation for Performanc as a precautionary remedy should be placed in the center, current law only recognizes Litigation to Confirm the Illegality of Omission as the administrative litigation procedure due to a concern for the separation of powers. But in terms of relief, Litigation to Confirm the Illegality of Omission is merely an indirect method, because even though the Litigation to Confirm the Illegality of Omission recognizes the administrative agency’s obligation in re-issuing the administrative disposition, it is only a responsive obligation, and the administrative counterpart would have to bring a revocation suit again to revoke the disposition. Accordingly, in the risk area which requires prompt responses, it would be necessary to introduce Litigation for Performanc as a proactive method for controlling administrative omission. In addition, if the introduction of Litigation for Performanc would be considered, the rules for identifying the duty of action and legal interests should also be reviewed and organized before such introduction.