원고적격(原告適格)의 정치경제학(2) -대법원의 객관소송관에 대한 분석적 비판을 중심으로-

Abstract

Korea has recently made efforts to reform administrative litigation system by

drafting its amendment to the Administrative Litigation Act (ALA). The Korean

Supreme Court's proposed amendment to the ALA expands the scope of an

individual's standing to file an administrative lawsuit. While ALA currently

provides that anyone with a statutory interest can file an administrative lawsuit,

its proposed amendment changes the basis of standing from statutory interest to

legally just interest. Currently, the standing to file an administrative lawsuit is

determined by the statute that provides the basis of a plaintiff's cause of action.

The Legislature currently determines who can file an administrative litigation under

any given administrative act. However, the proposed amendment will permit courts

to determine the scope of standing. If the proposed amendment to ALA is passed

by the Legislature, the amendment may be interpreted as permitting the courts to

consider relevant constitutional provisions and principles, judicial precedents, and

even jory (reason of nature) not to mention the statute that authorized the

administrative act. As a result, the amendment, if adopted by the Legislature, will

authorize courts to determine who can file an administrative lawsuit.

The proposed amendment is criticized in many aspects. The strongest criticism

of the proposed amendment is that it ignores the constitutional governing

structure by breaking the delicate balance of power distributed to the three

branches, i.e. the Legislature, the Executive, and the Judiciary. The standing

provision limits courts to their traditional role of protecting individuals and...