지방의회의원 징계에 관한 항고소송의 대상적격과 위법성 심사기준 ― 부분사회론에 대한 검토를 포함하여 ―

Subsociety theory is a legal principle, describing a separate subsociety differing from a general civil society where in a subsociety, comprehensive authority is recognized for maintaining and operating the order of the society, though there are no norms as grounds of recognition; internal disputes are not subject to judicial review, leaving them to autonomous resolution unless they are directly related to the general citizenry order. This subsociety theory has long been used as a basis for supporting precedents in Japan, explaining that the “expulsion” of local council members is directly related to the loss of status under the subsociety and thus the member expulsed may file for appeal litigation for the member is no longer part of the subsociety, but “suspension of attendance” is an internal matter of the subsociety and the member still belonging to the subsociety cannot file an appeal litigation. In this article, first the influence of the subsociety theory on the theory and practice in Korea was reviewed, and the current status of the subsociety theory and areas in need of improvement were examined as well. In the past, Korean precedents were evaluated to have been widely influenced by the subsociety theory, but gradually, the influence of the subsociety theory is fading. The method of determining whether a case is subject to judicial review or not by dividing subsociety and general citizenry order into two groups can no longer be maintained. Therefore, the tendency of precedents deviating away from the subsociety theory can be viewed positively. It seems, however, that the influence of subsociety theory remains in certain areas, such as internal disputes within religious groups, and in the future regardless of fields, it is necessary to avoid using expressions and logic that seem to have been derived from the subsociety theory. Next, recent trends and interpretations of subject eligibility of appeal litigations on disciplinary actions against local council members and the standards of judicial review on the illegality of disciplinary actions were examined. When the subsociety theory is not applied, the subject eligibility of appeal litigations should be decided by reviewing whether the case falls under disposition, and all disciplinary actions against local council members fall under dispositions, so it seems reasonable to recognize disciplinary actions as subjects of appeal litigations. Furthermore, on merits, strict evaluations should be made on the existence of grounds for disciplinary actions, and also for examination on abuse of discretion it seems desirable to make active judgments on whether disciplinary actions can be considered to have been appropriately taken in proportion to the violation committed by the council members reflecting the resident representativeness of local council members and the need to protect minorities.