처분사유 추가·변경의 판단기준 - 대법원 2021. 7. 29. 선고 2021두34756 판결, 대법원 2022. 12. 29. 선고 2022도9845 판결 -

The ‘identity of basic facts’ established as the criterion for determining the addition or change of grounds for disposition in administrative litigation is derived from the criteria for permitting amendments to bill of indictment in criminal litigation, also named 'identity of basic facts'. The Supreme Court has developed a legal principle in criminal litigation that normative elements should also be considered through an en banc judgment in determining whether or not the modification of the indictment must be allowed. Whereas in administrative litigation, judgment is repeated that 'identity of basic facts' should be judged based on specific facts before legal evaluation. In order to guarantee, however, the right of defense of the counterparty of the disposition and to secure concrete validity, it is necessary to consider not only the basic facts before the legal evaluation but also the legal elements and the plaintiff's intention when determining whether or not addition or change of grounds for disposition should be allowed. The subject rulings are cases in which administrative litigation and criminal proceedings were conducted together due to the administrative agency's corrective order for violation of administrative regulations and criminal charges. The subject rulings suggest that even if the basic facts are the same in terms of the facts before the legal evaluation, the legal factors were actively considered in judging whether or not to allow addition or change of grounds for disposition. Contents of the principle of law that has an important effect on the resolution of cases should be clearly stated starting from the general theory stage. Through the subject rulings, the criteria for adding or changing the grounds for disposition should be developed in a direction that meets the specific conclusions of the actual case while achieving the goal of guaranteeing the Plaintiff's right to defend and substantive rule of law.