영업정지･취소처분에 대한 취소판결의 형성력과 그 소급효 검토

It is question that the formation effect of a judicial retraction decision is retroactive or not. About this question, there are two opinions. One is the formation effect is retroactive without exception, the other is it is retroactive with exception. In order to The Supreme Court case, it is retroactive with exception. The retroactive effect of a judicial retraction decision, can injure the availability effect of a administrative action. So it is matter which is more important among the retroactive effect and the availability effect. According to the investigation about the grounds of the availability, I concluded that the availability effect of a administrative action should not hurt the retroactive effect of a judicial retraction decision. And I concluded that it is needed to amend the administrative proceeding law in order to prevent automatically the availability effect in case of bringing a lawsuit. And with regards to the circumstances decision system, the execution stoppage system, the third party’s lawsuit participation system, and the third party’s retrial system, I think the retroactive effect of a judicial retraction decision do not hurt legal stability seriously. So I concluded that the formation effect of a judicial retraction decision is retroactive wihtout exception. The other question is how is the effect of the administrative action that is against the retroactive effect of a judicial retraction decision. By the legal cases, there are some cases that the administrative action is invalid, and some cases the it is valid. With regards to the adminstrative legality and the relief of the people, I think the effect of the administrative action against the retroactive effect of a judicial retraction decision, is invalid. I concluded that the formation effect of a judicial retraction decision is retroactive without exception, and that the effect of the administrative action against the retroactive effect of a judicial retraction decision, is invalid.