공법상 당사자소송 활용론에 대한 비판적 고찰

A critical study on the broader utilization of party litigation in public law

It is substantial to our democracy and rule of law how are the public litigation systems constructed and formed. Administrative Litigation Act(‘ALA’) which was enacted in 1951 provided two types of administrative litigations, one is litigation for revocation the other party litigation in public law. While the former was dominant, the latter was almost not in use at practice. As ALA was revised in 1984, the types of litigations were classified in more detail and defined more clearly. The object of revocation litigation called Cheo-Bun(administrative act, Verfugung) has been limited in its application traditionally under ALA. It became therefore a controversial question in korean administrative law how the outside of Cheo-Bun like administrative legislation and factual action should be treated in public litigation systems. One approaches this problem with traditional view that the scope of revocation litigation should be interpret broadly and various forms of working administration covered by this type of litigation. The other deals with this matter with argument that the scope of revocation litigation is limited to legal administrative act which is derived from ‘Verwaltungsakt’ in german law, the outside of Cheo-Bun must be covered by another type of litigation, party litigation in public law. With the consideration of these debates and argumentations the reform bill of ALA in 2004, 2007 was drafted by the committee at Supreme court and the one at Department of Justice. This study tries to inspect the applicability of party litigation on several areas like litigation for monetary payment, disputes from administrative contract, delay in administrative rulemaking, claim for prohibition of unlawful factual actions etc. The issues arising from these areas should be resolved from the various points of view, especially effective remedy for the people. This paper also focussed on an expansion of public law principles and strategies for control of administration.