‘대법원 2025. 3. 27. 선고 2024두64154 판결’에 대한 비판적 평석 - 상고심절차에 관한 특례법의 함정과 재심의 당위성을 병론(竝論)함 -

This paper is a critical commentary on the Supreme Court Decision 2024du64154, dated March 27, 2025, and discusses the pitfalls of the Special Act on Appeal to Supreme Court Procedures(SAASCP) and the problems of the Grounds for Retrial. Chapter 1 introduces the background of the writing of this commentary. Chapter 2 provides an overview of the facts and progress of the lawsuit based on the judgment of this case. The Supreme Court’s decision on this case, dated March 27, 2025, 2024du64154, is very brief and without any reasoning, as it is a “dismissal without further examination.” Therefore, it is reconstructed through the decisions of the administrative trial and the first instance, and appellate trials of the administrative litigation. Chapter 3, the main core of this paper, attempts to critically comment on the judgment and focuses on the possibility & necessity of retrial based on the provisions of the Civil Procedure Act, the Court Organization Act, and the SAASCP. First, we examine the relevant provisions of the Court Organization Act and the SAASCP to prepare the legal principles for their interpretation and application. Second, we introduce the problems and constitutional controversies surrounding the SAASCP, and then examine the relationship between the grounds for exclusion from retrial under the Civil Procedure Act and the SAASCP. Third, we examine the procedural unconstitutionality and illegality of administrative decrees, regulations or actions. In light of the constitutional basis for delegated legislation and Supreme Court precedents, we argue that the relevant provisions of the Enforcement regulations of the Agricultural Land Act and the Guidelines for Examining the Issuance of Agricultural Land Acquisition Qualification Certificates are not only unconstitutional but also illegal and therefore invalid due to abuse of discretion beyond the scope of delegation of the Agricultural Land Act and the Enforcement Decree of the Agricultural Land Act. Fourth, we examine the substantive unconstitutionality and illegality of the Enforcement Regulations and Review Guidelines. We examine whether the restrictions on fundamental rights, violations of the principle of prohibition of excess, and violations of the right to equality are violated, and we argue that the substantive provisions are unconstitutional. Fifth, this paper points out the illegality and invalidity of the Supreme Court Decision 2020du30665, dated August 19, 2021, regarding the definition of “farmland” due to serious procedural defects under the Court Organization Act. This paper presents a multifaceted argument from diverse perspectives, drawing on a comprehensive comparison of data and in-depth legal analysis. In particular, it analyzes the frequently cited principle of legal interpretation of “reference” and the meaning of the phrase “unless special circumstances exist” in the original judgment. It also examines whether previous judgments that re-referenced “reference” also constitute grounds for retrial. Sixth, we review the illegality and unfairness of the ruling in this case and the grounds for retrial based on the provisions of the transitional provisions of the Building Act of 2005 regarding reports on conversion of agricultural land use. Seventh, the grounds for retrial will be determined by examining violations of various provisions of the Basic Administrative Law, enacted and implemented for the first time in 2021. Relevant provisions include: Article 2, “the definition of laws”, Article 8, the “principle of rule of law administration”, Article 12, Paragraph 1, the “principle of trust protection” and the principle of self-restraint, the relationship between Article 12, Paragraph 2, the “principle of loss of rights” and Article 23, Paragraph 1, the “statute of limitations for sanctions”, and Article 9, the “principle of equality” and Article 10, the “principle of proportionality.” Eighth, by pointing out the procedural and substantive illegality of the judgment that cited the reference documents submitted after the conclusion of the argument as evidence to support the legitimacy of the administrative disposition, we add the possibility and necessity of a retrial. Ninth, in view of the serious contradiction between the SAASCP and the retrial regulations, we examine the validity of whether the SAASCP can be applied again in the retrial of the Supreme Court's Decision. Our answer is No! Chapter 4 is the conclusion of this commentary.