행정상 사실행위에 대한 권리구제수단 연구 — 헌법재판소와 대법원 판례를 중심으로 —

Administrative factual acts are, by their very nature, difficult to classify into uniform categories. For this reason, discussions concerning which acts are subject to legal remedies and by what means likewise resist systematic typification. Most fundamentally, because such acts do not in themselves produce direct legal effects, and because legal disputes arising from them have therefore been relatively limited, administrative factual acts have not traditionally been regarded as a subject of particular importance in administrative law or constitutional law. Nevertheless, the issue of legal remedies for administrative factual acts is situated at the intersection of administrative litigation and constitutional adjudication. Moreover, given that the scope of matters subject to constitutional adjudication may vary depending on judicial interpretations under the principle of subsidiarity, there is sufficient reason to examine the accumulated case law and to analyze legal remedies for administrative factual acts on that basis. This study originated from an attempt to examine, with respect to administrative factual acts, the specific objects, methods, and reasoning through which the Constitutional Court provides relief by way of constitutional complaint proceedings, and to organize the issues arising therefrom. At the same time, because courts also perform a remedial function with respect to administrative factual acts, it is inevitable to consider legal remedies through administrative litigation as well. Accordingly, this study focuses on changes in the Supreme Court’s jurisprudence concerning the concept of “disposition” as the object of administrative litigation, and further seeks to examine how such changes affect constitutional complaints. As is well known, the Supreme Court has shown an increasing tendency to expand the concept of disposition subject to administrative litigation, and as a result, a body of case law has developed in which disposition status is exceptionally recognized even for certain administrative factual acts that were previously denied such status. These developments, in light of the subsidiarity requirement governing constitutional complaints, inevitably function as a factor bringing about changes in the relationship between administrative litigation and constitutional complaint proceedings. Against this backdrop, this study ultimately seeks to examine what functions or roles constitutional complaints perform as a means of legal remedy for administrative factual acts amid these evolving circumstances. More specifically, this study is structured to examine the concept of administrative factual acts, the concrete forms of legal relief provided by the Constitutional Court and the Supreme Court with respect to such acts, the relationship between constitutional litigation and administrative litigation in the context of administrative factual acts, and the functions of constitutional complaints as a remedial mechanism for administrative factual acts. The ultimate aim of this study is to clarify the significance of constitutional complaints as a means of legal remedy for administrative factual acts.