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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
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- Authors
- Issue Date
- 2001
- Publisher
- 서울대학교 법학연구소
- Citation
- 법학, Vol.41 No.4, pp. 389-415
- 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.
- ISSN
- 1598-222X
- Language
- Korean
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