제재적 행정처분에 관한 사법심사 — 최근 대법원 판례 동향을 중심으로 —

So far in korea’s administrative law academia the concept of administrative sanctions has not been clearly established. But already in judical review practice the Supreme Court of Korea’s precedents which considered characteristics of administrative sanctions and costitutional requests are establisched and applied. This paper has arranged and analyzed the Supreme Court of Korea’s precedents by types of administrative sanctions and by dividing the judical review into the stage of requirements and the stage of discretion in sentencing, Usually administrative sanctions have a retrospective character which is taken in reponse to corrent or past violation status, but at the same time they have a prospective character which are aimed at establishing the order, preventing risks and correcting violation status in the future. Thus when formulating a general theory about administrative sanctions, it is necessary to find a balance between the two characters. Each type of administrative sanctions has a distinct institutional orientation and different problems. Some types have a strong prospective element because of the institutional characteristics or the requirements of the authorizing provisions, so in the judical review of these types the prospective element should be properly considered. The Supreme Court of Korea’s precedents have provided guidance that it should not be hastily judged to be an abuse of discretion when administrative agencies had sentenced the administrative sanctions according to the disposition standard which are provided in the statutes or adminisrative rules. Because that, the scope for courts to intervene in the disposition sentencing has narrowed, so in judical review practice is partially present the trend that courts restict administrative sanctions in terms of requirements, not in terms of discretion in sentencing. This trend attempts to interpret the requirements of the authorizing provisions very stictly or understand them as subjective responsibility, but it does not fit the nature and system of administrative legal responsibility. The nature of administrative legal responsibility can be found in the objective status of breach of duty, subjective intent or negligence are not necessary unless specially stipulated in the authorizing provisions. And Strict sanctions is needed in order to ensure fulfillment of duty. The strict interpretation principle of the authorizing provisions of infringing dispositions which is often used in judical review practice, just means that systematic interpretation is needed and analogical interpretation beyond the possible meanings of the text is not allowed when interpreting the requirements of the authorizing provisions, doesn’t mean that literal or in dubio pro reo interpretation must be chosen in the possible meanings of the text. On the other hand excessive administrative sanctions should not be imposed in comparison the content and degree of breach of duty, so courts should examine whether administrative sanctions violated the proportionality principle. But administrative agencies have a certain amount of discretion in sentencing, and realistically it is diffcult to expect perfect implementation of the proportionality principle. Therefore courts should intervene only in cases of significant disproportion.