ScholarWorks@숙명여자대학교

초록

In the target judgment, an important issue is whether the provisions of the Enforcement Decree, which exclude law firms from thedesignation of the settlement team, are illegal. In addition, the Supreme Court examines ex officio whether there is an interest in the lawsuit, andapplies the interpretation of the ‘legitimate interest in confirmation’ recognized in the German continuous confirmation litigation to thesecond sentence of Article 12 of the Korean Administrative Litigation Act. This position can also be confirmed in other cases. In cases where it isnecessary to confirm the illegality of administrative measures because there is a risk of repeated illegal measures, the interests in litigation arerecognized. There is still controversy about the legal nature of Germany’s continuous confirmation litigation, and it cannot be directly applied to theinterest in the cancellation litigation. This is against the provision of Article 12 of the Korean Administrative Litigation Act. In addition, theSupreme Court recognizes the interest in litigation even when clarification of unclear legal issues in other cases is required, but this is reminiscentof the exception of rights protection interests in constitutional complaints. These contents are similar to recognizing the interest of a request for adjudication in cases where constitutional explanation is important for theprotection and maintenance of constitutional order. However, the interests in administrative litigation and the interests of right protection ofconstitutional complaints must be distinguished. A proper interpretation is required in accordance with the provisions of the second sentence ofArticle 12 of the Korean Administrative Litigation Act. The effect of the designation of the settlement team was terminated in the target judgment,but this has nothing to do with the interest in the cancellation litigation. The disposition in this case, which became a problem in the targetjudgment, is a disposition to cancel the designation of the settlement team. Although the disposition in this case was extinguished by ex officiocancellation, it is not clear whether there is any legal benefit to be restored by the revocation. The repeated risk asserted in the targetjudgment will inevitably continue unless the Enforcement Decree is amended, and this is a problem derived from the indirect control ofnorms. The discussion on the benefits of the consultation is derived from Japanese legislation and has nothing to do with Germany’s continuousconfirmation litigation. In accordance with the provisions of the second sentence of Article 12 of the Korean Administrative Litigation Act, it isnecessary to form an original theory and precedent. The term “interest in cancellation litigation in the narrow sense” is also derived from Japanesetheory, but its connotation is not clear. The need for protection of rights is a requirement commonly used in all litigation. The contents of thesecond sentence of Article 12 of the Administrative Litigation Act relate to the “special” need to protect rights recognized when the disposition isextinguished due to the elapse of a period, execution of disposition, etc. or other reasons. It is not reasonable to argue that the law firm’s freedomto performance of occupation is infringed by violating the principle of proportionality as the criteria for determining the unconstitutionality and illegality of the Enforcement Decree. This is the standard for reviewing constitutional complaints. It is also difficult to accept the argument thateach of the provisions of the Enforcement Decree is outside the scope of the mandate of the parent law. In judging the substantive illegality ofadministrative legislation, it is necessary to examine whether or not it violates the rule of law and the principle of prohibition of generaldelegation etc. Although it is possible to examine whether a provision of the Enforcement Decree violates the principle of equality, it is not easy toimmediately derive the unconstitutionality or illegality of the Enforcement Decree based solely on the violation of the principle of equality. As theseparate opinion properly points out, this issue relates to untrue administrative legislative omissions. Incomplete enforcement decreeprovisions are a problem. However, it is not reasonable to assume that this problem can be resolved through the interpretation and applicationof the enforcement decree in the cancellation litigation. This is beyond the court’s interpretation. In Germany, it is approached in the form of anorm supplementary litigation. This issue is a dispute concerning legal relations under public law. In that respect, the party litigation under thepublic law is a similar form of litigation, and through this, the right of the plaintiff can be confirmed. It is possible to argue for theunconstitutionality and illegality of the Enforcement Decree through the method of indirect norm control – through the principle of equality –. Butthis kind of argument for unconstitutionality and illegality is abstract and vague. The German norms supplement litigation is a litigation thatconfirms civil right through the principle of equality in specific cases and seeks to supplement the incomplete norms (delegated legislation). It istime to expand the various types of administrative litigation that can respond to new disputes through administrative litigation reform. Finally Ilook forward to changes in Supreme Court precedents that can provide a turning point for these changes.

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