행정법상 처분 개념 ― 성문 개념 규정과 대법원 판례에 대한 비판 ―

Through the comprehensive amendment of the Administrative Litigation Act and the Administrative Appeals Act in 1984, a legislative definition of the concept of administrative disposition as the subject of appeal litigation was established. This legislation faced numerous criticisms and academic debates based on German administrative law. However, during these 40 years, discussions on the concept of administrative disposition have made little progress. The Administrative Procedures Act enacted in 1996 and the General Act on Public Administration enacted in 2021 adopted the contentious concept of administrative disposition from administrative litigation law without modification. This additional legislation has caused various issues by providing procedural protection and recognizing substantial legal effects, such as authentification force, for acts that are not ‘administrative acts(Verwaltungsakte)’ but have been recognized as administrative dispositions by the court due to the needs of litigation law. On the other hand, the additional conceptual category of ‘other equivalent administrative actions’ in the administrative disposition concept of the Administrative Litigation Act was ignored by the Supreme Court without any mention and has not been materialized for 40 years. Now, it is necessary to correct the legislative wording of “other equivalent administrative actions” adopted 40 years ago for the purpose of relieving people's rights and interests. In retrospect, it is difficult to understand why the legislative text that was ignored by the courts was adopted into the Administrative Procedures Act and the General Act on Public Administration. The new administrative disposition concept should be refreshed by removing the additional category of ‘other equivalent administrative actions’. Even in this way, it is possible to equate the idea of ‘administrative act(Verwaltungsakt)’ with the new concept. In the long run, it would be good to clarify the legislative text, but in the short term, even if the legislative text is not clarified, ‘other equivalent administrative actions’ in the Administrative Litigation Act should be understood as so-called ‘apparent administrative acts’, as in some Supreme Court cases. And ‘other equivalent administrative actions’ in the concept of administrative disposition in the Administrative Procedures Act and the General Act on Public Administration Law should be viewed as almost meaningless, as the Supreme Court has avoided its interpretation and application. This is because the Administrative Procedures Act and the General Act on Public Administration adopted ‘other equivalent administrative actions’ in the administrative disposition concept of the Administrative Litigation Act as legislative text as it is, which should be regarded as incorrect legislation. The expansion of the concept of administrative disposition through precedents can mostly be justified by extending the conceptual factors of administrative act. In cases where it cannot be viewed as an administrative act but administrative disposition is acknowledged for the protection of citizens' rights, it would be appropriate to explain it by encompassing it within the concept of a ‘apparent administrative act’ that possesses the form and appearance of the exercise of public power. However, the recognition of administrative disposition without theoretical justification aimed only at concrete validity should be avoided. In the field of litigation practice, it is said that there are many cases where the court's judgment on administrative disposition is not certain, so it is not uncommon to file other lawsuits such as civil lawsuits along with appeals, and in some cases, the judgment of the administrative court and the civil court are different. Moreover, ‘the administrative disposition’ should not be recognized for acts of administrative agencies unrelated to or too far removed from the conceptual indicators of ‘administrative act’ unless they can be recognized as ‘apparent administrative acts’. From the perspective of legal stability, courts should not unprincipledly expand the outer limits of the conceptual markers of ‘the administrative act’. In addition, even if an administrative disposition is recognized as an ‘apparent administrative act’ for the purpose of protecting rights and interests, if it is not an administrative act but is considered an administrative disposition due to the necessity of the protection of the plaintiff’s interests, a clear explanation should be made. Otherwise, it would be unclear whether procedural law protection and substantive law effects can be granted to the administrative dispositions.