영국 사법심사청구에서의 정직의무(Duty of Candour)와 우리나라 행정소송법상 자료제출요구제도 도입에 관한 소고

In contemporary administrative practice, a vast quantity of administrative data is collected, generated, recorded, and preserved throughout the course of actions undertaken by administrative and public authorities. The advent of e-government has substantially amplified the volume of such data and information. Administrative agencies utilize this administrative information collaboratively through established procedural frameworks. However, parties subject to administrative action encounter significant restrictions in accessing information and materials retained by administrative agencies. Consequently, as in civil litigation, there is a pressing need in administrative proceedings to realize the principle of equality of arms by rectifying the structural imbalance of evidentiary resources and the resulting informational asymmetry. However, the existing mechanisms under the current Korean Administrative Litigation Act—such as the order for submission of administrative adjudication records, applications for documentary production orders through the application of the Civil Procedure Act, and the statutory right to information disclosure under the Official Information Disclosure Act—demonstrate inherent limitations in addressing the informational asymmetries resulting from the structural maldistribution of evidence. In response, legislative efforts have been made in South Korea to address these deficiencies through legislative amendments to the Administrative Litigation Act, introducing a material submission requirement system modeled upon the administrative agencies' obligation to submit materials in German administrative litigation. In introducing a material submission requirement, it is necessary to look beyond the German administrative litigation system—which served as the primary model—and consider comparable systems in other jurisdictions. This article examines the Duty of Candour in judicial review proceedings in the United Kingdom, which, like the Korean administrative litigation system, is based on the adversarial principle. The UK Duty of Candour imposes a fundamental obligation on public authorities to submit relevant materials, requiring them to provide complete and accurate information. In accordance with the best evidence rule, authorities must submit original documents rather than secondary evidence. Additionally, under the principle of non-selectivity, public authorities are required to disclose materials that may be unfavorable to their own position. In the event of a breach of the Duty of Candour, the court may, in the course of fact-finding, draw adverse inferences against the public authority, order it to bear litigation costs on a punitive basis, and formally note the violation in the judgment as a measure of disapproval. The Duty of Candour in UK judicial review may serve as a valuable reference in introducing a material submission requirement into the Korean Administrative Litigation Act. Administrative agencies should, in principle, be subject to a duty to produce materials, and be required to provide complete and accurate information, including the original documents themselves. Furthermore, they must be obliged to disclose information and materials that may be adverse to their own position. To ensure the effectiveness of such a system, procedural safeguards may include imposing litigation costs on the defendant administrative authority in cases of unjustified non-compliance, levying fines on litigation officers, or expressly allowing the court to draw adverse inferences against the authority.