확인적 행정행위로서의 중간적 처분에 관한 법리의 재구성 - 입찰참가자격제한요청과 그에 따른 입찰참가자격제한처분의 관계를 중심으로 -

The Supreme Court has expanded the scope of revocation lawsuits for the reason of early settlement of disputes regarding intermediary administrative actions, and recently called them ‘confirmatory administrative act’. This can be regarded as a substantive legal disposition. Requests for debarment are also substantive legal dispositions because they fall under 'multi-level administrative acts' or 'administrative activities corresponding to the constituent requirements for the occurrence of specific legal effects'. Since the request for debarment, which is an intermediate disposition, is part of the disposition of debarment, which is the final disposition, the question of whether the former is absorbed by the latter is raised based on the absorption theory accepted in Supreme Court precedents. Since the intermediate disposition and the final disposition have separate legal effects as separate dispositions and there is no practical reason to accept the absorption theory, the former should not be regarded as absorbed by the latter. In this case, even if a disposition of debarment is issued after the request for debarment, the regal interest of the litigation for revocation of the request for debarment will not be extinguished, and if a judgment for canceling the request for debarment becomes final and conclusive, based on the binding force of the judgment, the disposition of debarment is subject to ex officio revocation. Finally, with regard to the issue of whether illegality in intermediate dispositions are succeeded to final dispositions, the specificity of ‘confirmatory administrative act’ and the need for an early and definitive conclusion of the administrative law relationship should be comprehensively considered. Depending on the legal nature and contents of the intermediate disposition, and the scope of its effect, the scope and reasons for succession of illegality may be judged differently. In the case of a request for debarment, it becomes a precondition for a disposition of debarment, which has a punitive character, and is applied only to a specific case against a specific party. In this respect, it can be seen that the succession of illegality is recognized as it corresponds to the case of 'combining each other disposition to complete one legal effect', which is the reason for recognition of succession of defects in korean judicial precedent.