서울특별시 지하도상가 관리 조례(임차권 양도 금지 조례)에 대한 대법원 2020두49423 판결과 헌법재판소 2018헌마1035 결정에 관한 검토- 조례의 처분성 및 공법적 쟁송수단을 중심으로 -

This text discusses the complexities involved in determining whether an action qualifies as a “disposition” under administrative law, despite the objectives of the Administrative Litigation Act and the definition of dispositions. The challenge lies in deciding whether a particular subject is a disposition and determining its legal nature, which is crucial in the context of constitutional complaints when the principle of subsidiarity applies, and judicial review is not permitted. Although both administrative litigation and constitutional complaints are designed to control the exercise of public power and protect citizens' rights or fundamental rights, they are separate legal remedies with distinct requirements. Due to the principles of subsidiarity and the prohibition of judicial review in constitutional complaints, neither can simultaneously serve as the ultimate means of remedying citizens' rights. Consequently, one must become the sole legal remedy, necessitating clear and uncomplicated criteria for determining the subject of review by either institution to avoid confusion among citizens. The text further discusses the issue of “dispositional ordinances,” particularly following the court's passive judgment on the abolishment ordinance of Dumil Elementary School and the Constitutional Court's interpretation of subsidiarity to bridge the gap. The overlap of uncertainties regarding whether an ordinance is a disposition and the ambiguity of whether it can be the subject of administrative litigation has led to continuous controversy and doubts about this approach. While the Constitutional Court's approach aimed to prevent a gap in rights protection and ensure the effectiveness of remedies for parties, the Supreme Court has consistently expanded its judgments on the disposition of administrative acts, excluding administrative legislation. This situation has effectively compelled parties to pursue a two-track approach, taking the same issue to both the court and the Constitutional Court, creating new problems of active and passive jurisdictional conflicts. In this context, regarding the ordinance prohibiting the transfer of lease rights, the court in the subject ruling introduced the “appearance formation theory” as a new standard for recognizing the eligibility of administrative litigation, stating that it is sufficient if the appearance of directly affecting specific citizens' rights is formed. The Constitutional Court respected this by dismissing the case based on the principle of prohibition of judicial review or subsidiarity, as the ordinance could not be the subject of a constitutional complaint. This development can be seen as the court's progressive expansion of recognizing administrative litigation for ordinances and its effort, along with the Constitutional Court, to address the criticism of jurisdictional confusion and prevent confusion in choosing public legal remedies as a means of protecting citizens' rights.