The Structures and Roles in Judicial Review of Administrative Litigation in Korea

Abstract

The purpose of this paper is to review the basic structure of administrative litigation system of Korea and its role in the judicial review over the exercise of public powers. The courts jurisdiction over administrative litigation has an evident constitutional ground, but the concrete forms of action

have been decided by the legislature. The main forms of judicial review are appeal litigations which include a suit for invalidation, a suit for affirming the nullity and a suit for affirming the illegality of omission of a disposition in the Administrative Litigation Act.

Until recently, the scope of review under the appeal litigation has been restricted mainly by the courts narrow interpretation of the concept of disposition and their view on the purpose of litigation. A disposition means an administrative legal decision with direct binding force on a specific case. The administrative activities with only factual effect (administrative guidance, administrative investigation, etc.) and administrative rule-making have been excluded from the concept of disposition. The purposes of appeal litigation are both to protect the legal right or interest of

individual inflicted by an administrative decision (subjective purpose) and to secure lawful exercise of administrative power (objective purpose). However the subjective purpose has been stressed as a primary purpose of appeal litigation and the standing for public interest lawsuit has been denied.

But there are observable changes of the courts attitude responding to the recent social changes: democratization, decentralization and globalization. The 2004 Supreme Courts proposal to amend the

Administrative Litigation Act, which adopts new forms of actions providing remedies of injunctions and more expansive concepts about the subject matter and standing for appeal litigation, can be seen as an evidence of the courts changing self-image.