행정소송 제도 개혁의 쟁점 ― 입법, 판례, 도그마틱의 조화의 관점에서 ―

It has been 40 years since the full revision of the Administrative Litigation Act (ALA) in 1984, during which time discussions on amending ALA have been held on several occasions, but ultimately abandoned. In the 40 years, the administrative litigation systems of neighboring countries such as Japan and Taiwan have undergone changes. However, the Korean administrative litigation system has remained the same without any significant changes to respond to the changing circumstances. On the other hand, over the past 40 years, the Supreme Court has created many new case theories, and there have been numerous changes in administrative laws and regulations, and the public's awareness of their rights has increased tremendously. In the process of enacting the General Act on Public Administration in 2021, a change in the paradigm of our legislation has also been detected. Rather than leading the development of the law, the legislature is now accepting the development of precedents. However, the flame of administrative litigation reform is not easily reignited. Therefore, it is time to find a clear and realistic way to reform administrative litigation. The need for reform cannot be overlooked and the lessons of past failures cannot be ignored. The starting point for a new reform that mirrors the failures of the past should be a sober realization of the legislative and political situation, changes in precedents and laws, and a reexamination of administrative law dogmatics. In particular, since administrative law dogmatics are intended to rationally explain the administrative legal order, it is easy to deviate from a rational administrative legal order if administrative law dogmatics are excessively sacrificed for the sake of solving practical problems. Specifically, I would like to emphasize that ① the concept of administrative disposition should not be excessively deviated from the academic concept of administrative act, and it is necessary to settle a balanced case theory and legislative change on the concept of administrative disposition. ② since the case law theory on plaintiff standing is already beyond the scope of the protective norms theory, structuring the logic of the case law theory can achieve the goal of reforming administrative litigation without changing the rules on plaintiff standing in the ALA. Of course, it is desirable to organize the legal texts. ③ The case law theory on the need to protect rights is also deviating from the provisions of the ALA, so legislative clarification is necessary. ④ The case theory on the binding effect of a judgment is moving toward recognizing the obligation to restore damages as part of the binding effect of a judgment without any restrictions, but it should be clarified that the binding effect is only within the scope of the case, and the recognition of the binding effect outside the scope of the case should be limited to cases where it is unavoidable under the principle of good faith. ⑤ Considering that the conciliation system has been introduced in administrative appeals and that various dispute resolution systems are utilized in foreign legal systems for administrative disputes, it is recommended that the settlement recommendation decision system be stipulated in the ALA. ⑥ Although the Supreme Court of Korea has recognized only statutory appeals, we believe that the court can create any type of lawsuit as long as it does not violate the constitutional order. This is because there is a right to a trial as a constitutional right. Of course, we do not oppose the legislative creation of such a new type of lawsuit. ⑦ However, we do not believe that allowing appeals against administrative legislations should be introduced as a precedent without amending the ALA, as it is likely to materialize the principle of separation of powers and greatly affect the powers of the executive branch. ⑧ In order to revitalize party litigations, the ALA should be amended to explicitly state that state compensation lawsuits, unjust enrichment claims, and loss compensation claims are party litigations, but in addition to these measures, we would like to propose a measure to recognize the administrative agency as a defendant in party litigations. ⑨ In order to improve the temporary relief system, we are in favor of relaxing the requirements for suspension of execution and introducing a provisional injunction procedure. However, we believe that the introduction of provisional injunction procedures can be achieved not necessarily through legislative improvements, but also through changes in case law. ⑩ It is desirable to recognize the request for administrative documents as a plaintiff's right, rather than stipulating that it is only a court's power. ⑪ Given that case law has already partially recognized administrative agencies as plaintiffs, allowing for some agency suits in reality, We are in favor of abolishing agency suit statutoryism. On the other hand, given the tendency of our legislation today to adopt the doctrines established by Supreme Court precedent, it is worth considering that reforms that are difficult for the executive branch to embrace at this point in time should be implemented gradually, through court changes in precedent, and ultimately through legislation. In addition, the reform of the administrative litigation system has a great impact on the theoretical system of administrative law, and the wrong reform may be difficult to justify theoretically. Careful attention is needed to ensure that the reform of the administrative proceedings system is in harmony with dogmatics.