행정소송에서의 소익과 헌법 -사법권과 소익, 그리고 개인적 이해관계의 함수관계-

Abstract

The Supreme Court of Korea has construed the concept of mootness so

narrowly, consequently limiting citizens' constitutional right to judge trial. Basing

its construction upon too strict, literal, formal reading of legal interest

stipulated in Article 12 of Administrative Litigation Act(ALA), the Court is

criticized for failing to take into appropriate consideration the raison d'être of

mootness. In the United States, mootness derives from the requirement of Article

III of the Constitution under which the exercise of judicial power depends upon

the existence of a case or controversy. According to orthodox understandings,

the mootness doctrine disempowers the federal courts from deciding certain kinds

of cases. By keeping certain public-mined plaintiffs and public-law claims out of

federal court, the mootness doctrine has shifted much of the battle for collective

rights to the more steeply pitched fields of the political process. In order to

satisfy the requirement of case or controversy, a plaintiff must maintain a certain

live personal stake in the outcome throughout the course of litigation. A case is

moot when the issues presented are no longer live. In most cases involving the

mootness doctrine, however, the U.S. Supreme Court has readily found that there

exists a live personal stake on which the judgment of the court can operate to

make a substantive determination on the meirts. The author introduces the

relevant cases and literature of the U.S. to explore the possibility to import the

mootness doctrine developed in the U.S. to Korea. By analyzing them and

suggesting the implication of the analysis, the author argues that the Supreme

Court of Korea should be freed from the strict, literal, formal construction of the

text legal interest in the ALA. By considering the substantive function of

mootness doctrine, the Supreme Court of Korea will be able to find a more

suitable criteria to distinguish cases which are moot or not.