부작위위법확인소송의 쟁점에 관한 고찰

초록

Administrative Litigation Act established in 1984 adopts the lawsuit against illegal administrative omission instead of the lawsuit for mandatory decision. There had been criticism on this, in the sense that it is an indirect system in the remedy for illegal administrative omission. Moreover, current law regarding the lawsuit against illegal administrative omission has several controversy on its interpretation. The main points are as follows. First, administrative omission is premised on the opposite party’s application, and in this case whether the ‘existence of right to application’ is the condition of omission or not is the issue. On the aspect that Civil Petitions Treatment Act §15 stipulates the general duty of administrative office to respond to the applications, it is right to say that the existence of right to application is not requirement for omission. Secondly, regarding the standing to the sue, Administrative Litigation Act §36 stipulates that “the applicants only those who have legal interest to ask to confirm the illegality of an administrative omission can raise it.” Here, the clause ‘those who have legal interest to ask to confirm the illegality of an administrative omission’ is unnecessary and therefore can be deleted. Because the lawsuit against illegal administrative omission limits the standing to ‘the applicants.’Thirdly, the theories regarding the range of examination on the lawsuit against illegal administrative omission varies. It seems right to say that on the aspect of citizens’ remedy for violation of rights, in the case of obligatory administrative act, the court can decide if the administrative office has the obligation to give the administrative act as applied. Lastly, if the lawsuit for mandatory decision is adopted, it is questionable whether the lawsuit against illegal administrative omission should be kept or not. It seems that since the lawsuit against illegal administrative omission is indirect means in the remedy for violation of rights, it is right that the lawsuit against illegal administrative omission should be abolished if the lawsuit for mandatory decision is adopted.

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