취소소송의 판결의 기속력에 관한 판례이론 검토

The recent Supreme Court decisions expand re-disposition obligation and duty to restoration concerning the binding force of revocation judgment. However, reckless expanding of the binding force of revocation judgment could destruct the balance of interests among the plaintiff, the defendant, and the third party. As a premise for argumentation for the above issue, I differentiate the effect of excluding further litigation (Res Judicata) from the binding force of revocation judgment. Res Judicata is an effect on litigatory actions whereas the binding force of revocation judgment has the substantive law effect. The binding force of revocation judgment enables effective execution of court rulings on administrative agencies‘ actions, which is impossible to achieve with only Res Judicata. For this reason, expanding the binding force of revocation judgment could be desirable for plaintiffs. However, it is important that the expansion of the binding force of revocation judgment is not allowed to the extent that the effect applies to arguments that are not fully disputed in the court. Specifically, we should limit re-disposition obligation that is not regulated by the administrative litigation act, revocation obligation against inconsistent disposition, and duty to restoration. Expanding the binding force of revocation judgment of such obligations and duty should be accepted only after the court has fully reviewed the case concerning these expansions and if the expansions do not interfere with the public interests and the interests of the third party and no other requirements for the ruling exist. In conclusion, I recommend using the ‘good faith and sincerity rule’ when applying the expansion. For the legislative solution, I recommend revising the Administrative Litigation Act of Korea Article 30 to establish adequate standards for administering the expansion of binding force of revocation judgment.