거부처분과 신청권에 대한 고찰

The purpose of Administrative Litigation Act (ALA) is, through administrative litigation procedures, to protect adversely affected or aggrieved people by unlawful actions of administrative agencies or an action or inaction of public authority, and to ensure proper resolution of disputes over the rights based on public law or the application thereof (Article 1 of ALA). Unlike civil litigation that typically aims resolving a legal dispute between two or more individual parties, administrative litigation is a type of proceeding that is brought by an aggrieved party (mostly individual and weak party as opposed to administrative agency) to seek review of a decision by an agency who is a public body. Taking administrative litigation into consideration of an unlevel playing field, administrative litigation procedures is required to meet the aim and purpose provided in ALA. Putting aside dissatisfaction of win or lose, it has been pointed out as a problem whether an aggrieved party is qualified to seek relief in the court and the matter of qualification has not been supported by people. The court has tried to loose such qualification at least in nominal by various interpretations of statutory provisions but at the same time such attempts may be subject to a criticism. It is necessary to work on fundamental review of the general rights to judicial review of agency actions. In case where people have applied to and denied by an administrative agency, followed by filing petition to and disputing with the agency, then they seek a remedy in a court. If the court dismisses the case by saying that it is a denial of the agency but it is not a “final agency action of denial” because the petitioner has not been entitled to appeal against the agency on certain matters, or if the court accepts to decide the case by saying that it is subject to judicial review because of “social norms” (jori-sang in Korean), aggrieved people may get confused and become distrust court’s decision. What people want is to seek in a reviewing court whether agency’s action or inaction is right and legitimate because aggrieved people feel that they are penalized due to the agency’s action. The court should not underestimate people’s filings for judicial review, by reason of preventing people from abusing litigations or for the purpose of reducing trials of the administrative courts. Thus, it is not desirable for the court to continue determining qualification on whether denial of agency or final agency action of denial. Instead, it is advisable that the court allows more judicial reviews toward protecting aggrieved people’s right and interest in the nature of administrative litigation against agency.