현행 기관소송제도에 관한 소고

A Study on the Agency Litigation - Focusing on the Subject and Range of Review -

When a dispute occurs in relation to the "agency's authority", Agency Litigation by the Administrative Litigation Act and Adjudication on Competence Disputes by the Constitutional Court Act exist as the means to resolve a dispute. Both have allowed many problems since their introduction and despite the various suggested solutions, there has been little progress in terms of administrating system and legislation. In the perspective of Administrative Law, every issue of dispute settlement system in terms of contestation concludes as the means to activate Agency Litigation. These issues include whether or not to define Agency Litigation as disputes between 'two agencies within equal legal bodies' and abolish the principle of legality of Agency Litigation, and the establishment of relation between Adjudication on Competence Disputes and Agency Litigation, etc. These disputes originate, for Adjudication on Competence Disputes has been governing administrative dispute as well as constitutional dispute between the agencies. These do not accord with the essence and purpose of the Constitutional Adjudication System thereby limiting the area of Agency Litigation that tries to avoid the overlap with Adjudication on Competence Disputes. The Supreme Court in 2004 and the Justice Department in 2012 have tried to extend the object and scope of Agency Litigation by amending the Administrative Litigation Act. Both amendment bill focused on abolishing the principle of legality of Agency Litigation. However, these efforts reveal limitations, for these took place before the definitive establishment of relation between Agency Litigation and Adjudication on Competence Disputes that accords with the respective Dispute Settlement System. The essence and purpose to introduce the system concerned should be focused to resolve the problems related to Agency Litigation and Adjudication on Competence Disputes. Accordingly, systematic improvement is suggested to have Adjudication on Competence Disputes undertake constitutional dispute between the agencies and Agency.