헌법상 재판청구권의 보장을 위한 행정구제 법제의 설계 – 심급제와 행정심판 전치를 중심으로 –

Under Korea’s administrative litigation and adjudication system, the constitutional right to a fair and speedy trial has often been undermined. One of the reasons lies in the conflict between different subsystems transplanted from multiple jurisdictions. The concept of agency self-control has been extensively cited to compromise the constitutional principle of quasi-judiciality and to impede the introduction of the adversarial model. To cope with the problem, Korea introduced Japan’s post-war system, which was modeled after the American system during the American occupation of Japan. The reform partly worked to expand the right to a trial, but has been found “half-baked” or unripened at times: some processes (such as labor relation disputes) require the excessive iteration and repetition of proceedings, while others (such as antitrust or patent disputes) preclude trial court jurisdiction without sound justifications. Finding its causes from the lack of parties’ choices over procedures, judiciary-administration competition, and balance between impartiality and efficiency, this paper proposes to grant parties a choice between a trial court proceeding and administrative adjudication, coupled with an opportunity to challenge their decisions in courts of appeals.