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행정소송에서의 소익과 헌법 -사법권과 소익, 그리고 개인적 이해관계의 함수관계- : Mootness and Constitution in Administrative Actions: A Function among Judicial Power, Mootness, and Personal Stake
DC Field | Value | Language |
---|---|---|
dc.contributor.author | 조홍식 | - |
dc.date.accessioned | 2009-09-09 | - |
dc.date.available | 2009-09-09 | - |
dc.date.issued | 2001 | - |
dc.identifier.citation | 법학, Vol.41 No.4, pp. 389-415 | - |
dc.identifier.issn | 1598-222X | - |
dc.identifier.uri | http://lawi.snu.ac.kr/ | - |
dc.identifier.uri | https://hdl.handle.net/10371/9001 | - |
dc.description.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. | - |
dc.language.iso | ko | - |
dc.publisher | 서울대학교 법학연구소 | - |
dc.subject | 등록취소처분 | - |
dc.subject | 공장등록취소사건 | - |
dc.title | 행정소송에서의 소익과 헌법 -사법권과 소익, 그리고 개인적 이해관계의 함수관계- | - |
dc.title.alternative | Mootness and Constitution in Administrative Actions: A Function among Judicial Power, Mootness, and Personal Stake | - |
dc.type | SNU Journal | - |
dc.contributor.AlternativeAuthor | Jo, Hong Sig | - |
dc.citation.journaltitle | 법학 | - |
dc.citation.endpage | 415 | - |
dc.citation.number | 4 | - |
dc.citation.pages | 389-415 | - |
dc.citation.startpage | 389 | - |
dc.citation.volume | 41 | - |
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