이른바 부진정 행정입법부작위에 대한 사법심사 — 행정입법의 흠결에 관한 법학방법론 —

Judicial precedents approach administrative legislation nonfeasance in various ways. This study analyzes the various approaches of precedents from the perspective of legal methodology, analyzes the development so far, and criticizes its limitations. Through this, the logical problem of dividing administrative legislation nonfeasance into true and untrue, and the desirable method of remedies for administrative legislation nonfeasance from the viewpoint of our litigation system are sought. The key points are as follows. We should start with the premise that in our country, as in other countries, remedies for administrative legislation nonfeasance should be available as a matter of course. The legal obstacles to this conclusion should be overcome in the following ways. First, the conceptual distinction between true and untrue administrative legislation nonfeasance should be eliminated, and the system should be introduced to distinguish the normative issuance procedure from the normative control procedure. Second, for insufficient administrative legislation, a lawsuit challenging administrative legislation nonfeasance itself (the normative issuance procedure) should be allowed in addition to a lawsuit challenging the insufficient administrative legislation (the normative control procedure). Third, both challenging insufficient administrative legislation and challenging administrative legislation nonfeasance itself should be in the form of appellate litigation. Fourth, lawsuits challenging insufficient administrative legislation should be allowed as a matter of course, even if there is no explicit provision in the Constitution, just as lawsuits challenging administrative legislation itself. Finally, the freedom of judges to formulate laws should be recognized more broadly in cases involving interpretation of administrative legislation than in cases involving interpretation of laws.