항고소송에서 ‘분쟁의 1회적 해결 요청’과 상소의 이익

In an appeal litigation, there are various grounds for unlawfulness to revoke a disposition. With respect to a case where the plaintiff basically asserts the complete nonexistence of dispositive grounds, albeit judgment is rendered revoking said disposition in entirety by rejecting the plaintiff’s nonexistence claim while accepting the assertion on procedural flaw, excessiveness in assessment of disposition, etc., the plaintiff may appear to have won the case in the text of the decision whereas it may not be a favorable outcome on the part of the plaintiff in the rationale of the decision. Nevertheless, in such case, the Supreme Court’s established position has been to deny the plaintiff’s benefit of lawsuit regarding the judgment revoking the disposition. In a civil litigation, namely, a lawsuit seeking monetary compensation, a dispute regarding the subject-matter of lawsuit between the plaintiff and the defendant is ultimately and normatively settled through a court ruling. On the other hand, precluding exceptional instances where dispositive grounds are deemed to be completely nonexistent in an appeal litigation, a dispute between the plaintiff and the defendant (administrative agency) is not fully resolved through a revocation judgment, inasmuch as the competent administrative agency is likely to reintroduce a dispositive measure by correcting the grounds for unlawfulness as pointed out in the revocation judgment. Upon the lower court’s revocation judgment becoming final and conclusive, an administrative agency, without initiating a suit, may reissue a dispositive measure by correcting the flaw indicated as the grounds for unlawfulness in the judgment. In this case, the plaintiff is required to reassert the nonexistence of dispositive grounds through filing another lawsuit seeking revocation for the reintroduced dispositive measure. Furthermore, the plaintiff’s benefit of lawsuit is recognized only when the plaintiff’s claim brought in a subsequent suit is rejected and the judgment dismissing the same is delivered in the text of the decision, thereby paving the way for the plaintiff to be rendered a decision in a higher court as to the legitimacy of the “assertion on the nonexistence of dispositive grounds.” Such method of resolution is unreasonable given that it compels the plaintiff to instigate a revocation suit more than two times. For an appeal litigation to function as a dispute settlement procedure that can effectively provide remedy against infringement of the public’s right due to an unlawful disposition, it would be desirable to recognize the benefit of lawsuit to the effect that a legal dispute relating to the disposition in question is resolved the first time, if possible. Likewise, in a civil litigation, the benefit of lawsuit is not uniformly determined according to a perfunctory appeal theory; rather, to ensure that a dispute is reasonably settled, exceptions are acknowledged in cases where a substantial disadvantage exists for a party in the rationale of the decision even if said party was handed down a whole favorable judgment in the text of the decision. There is stronger demand for “one-off dispute resolution” in an appeal litigation. The “request for one-off dispute resolution” is already diversely reflected in the legal doctrine on appeal litigation. For example, in Germany, where the plaintiff wins an appeal suit in entirety, the benefit of lawsuit is denied according to the common theory and judicial precedents, as a matter of principle. However, on the other hand, the Administrative Procedure Act of Germany (Verwaltungsverfahrensgesetz) guarantees a one-off dispute resolution through permitting (i) the instigation of compulsory performance lawsuit, (ii) the date when a judgment is rendered to be set as the base period for determining the unlawfulness of a disposition, and (iii) the correction of a procedural flaw while a lawsuit is pending. That said, the relevant issues are fundamentally different between Korea and Germany. On the contrary, in such extenuating circumstances where a dispute is not settled the first time through a court ruling in an appeal litigation and the rationale of the decision affects the ex post dispositive measure to be reintroduced or the subsequent suit to be filed, German law recognizes the benefit of lawsuit as to an unfavorable part of the judgment in the rationale of the decision. According to a previous judicial precedent, where the court hearing a lawsuit delivers a revocation judgment on grounds that there exist a procedural flaw regarding a dispositive measure, this may lead to the following conundrum for the court: (a) face criticism for failing to exhaust all necessary deliberations and avoiding judgment if unable to explicitly determine the existence or absence of a substantive flaw, or (b) if explicitly determining that a substantive flaw is nonexistent, face criticism for making an unnecessary determination in a situation where the plaintiff is not granted an opportunity to object to the disposition and placing the plaintiff at an unfavorable position in the subsequent suit relating thereto. To overcome such conundrum, of the judgment revoking a disposition on grounds of a procedural flaw, i.e., “the portion determining that no substantive flaw exists,” the plaintiff’s benefit of lawsuit can be recognized so that he/she may be granted an opportunity to be heard again in a higher court. On the other hand, premised on the fact that such opportunity is granted, as regards the part of the final and conclusive judgment ruling “no substantive flaw exists,” it may be tenable to acknowledge binding force (issue preclusion) to disable the plaintiff from further challenging the re-dispositive measure and disputing the same in subsequent legal proceedings.