재량하자의 증명책임과 법원의 심리방식

In administrative trials, unlike civil trials, the documents that form the basis of the procedures, processes, and content of administrative legal relations are often kept within the defendant administrative authority. Due to the ubiquity of these documents and information, plaintiffs in administrative proceedings are in a difficult position to obtain evidence or documents to support their claims in administrative proceedings. In such a situation, it is difficult for the court to conduct a sufficient deliberation in an administrative proceeding if the plaintiff who filed the administrative proceeding is unable to provide the court with the necessary documents and evidence. Therefore, in order for the court to conduct a sufficient deliberation in an administrative proceeding, the defendant administrative authority is requested to submit various internal documents, materials, and information necessary for the hearing in advance. This study aims to examine ways to alleviate the passive and uncooperative attitude of the defendant administrative authority toward the submission of evidence and documents in administrative trials under the current legal system and to enable a more complete hearing of administrative trials. First, this article examines the introduction of the court’s discovery request for documents from the defendant and the relevant administrative authorities as a way to stimulate the submission of evidence and documents, the conduct of ex officio examinations under Article 26 of the Administrative Litigation Act, the issuance of ex officio document submission orders, and the exercise of the court’s power to request of elucidation, and then examines their benefits and limitations. This article shows that the adjustment and reallocation of the burden of proof to the defendant administrative authority under the current legal system is a realistic alternative to alleviate the aforementioned passivity and uncooperative attitude of the defendant administrative authority in providing evidence and documents, and can be a starting point for improving the practice for a more complete hearing. In particular, it points out the problems arising from the Supreme Court’s precedent that the burden of proof for abuse of discretionary dispositions lies with the plaintiff, and theoretically analyzes the feasibility of shifting the burden of proof for abuse of discretionary dispositions to the defendant administrative authority in principle. Finally, the article examines the possibility of changing and improving the court’s hearing method and realizing a complete hearing by redistributing or adjusting the burden of proof for abuse of discretionary dispositions.