거부처분에서의 신청권은 사명을 다하였는가

The Korean Supreme Court's precedent ruled that “in order for a refusal disposition by an administrative agency in response to an application filed by a party to be a subject matter of appeals suit, the party must have the right to apply for the exercise of the administrative agency in accordance with the laws and regulations or sound reasoning.” As a requirement for refusal disposition, a subject matter of appeals suit, the right to apply is required. In this regard, the influential theory is that whether or not the plaintiff has the right to apply is close to the element of the standing to sue, and the Supreme Court confuses the standing to be a subject matter in a suit with the standing to sue. It is criticized for reducing or restricting the protection of rights and interests by demanding the right to apply as a requirement for refusal disposition, which is not prescribed in the Administrative Litigation Act. However, if we logically analyze the refusal disposition, a subject matter of a revocation suit, it is difficult to assume the refusal to exercise by the administrative agency that does not presuppose the application of the citizens. And, in terms of the necessity of preventing excessive litigations, it is necessary to request the right to apply at the stage of standing to be a subject matter in a suit that precedes the standing to sue. Because the former is derived from objective interpretation of related laws, while the latter can be judged by examining the subjective and specific circumstances of individual parties. Considering the above circumstances, the attitude of the Supreme Court’s precedent can be reasonable. On the other hand, it is not reasonable in the following respects that precedents have recognized the right to apply under sound reasoning, thereby expanding the eligibility for refusal disposition. As for sound reasoning, it is unclear whether the right to apply under sound reasoning will be granted. According to the attitude of precedent, the distinction between standing to be a subject matter in a suit and standing to sue can be confused and broken. Therefore, in the first place, rather than granting the right to apply under sound reasoning easily in the Supreme Court case, an active interpretation of the right to apply through the expansion of the scope of related laws and their rational interpretation is required. More fundamentally, the Supreme Court is required to seriously review whether it is reasonable to continue to maintain the concept of the right to apply in the refusal disposition that appeared to prevent excessive administrative litigations. It is expected that the legislative attitude will change in the direction of expanding the rights and interests preemptively and practically by clarifying the grounds, procedures, and requirements for applying for administrative disposition.