SHERP

원고적격(原告適格)의 정치경제학(2) -대법원의 객관소송관에 대한 분석적 비판을 중심으로-
Political Economy of Standing(2) -Analyzing the Public Law Model of Administrative Litigation Based on Public Choice Theory-

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Authors
조홍식
Issue Date
2005
Publisher
서울대학교 법학연구소
Citation
법학, Vol.46 No4 pp.121-196
Keywords
행정소송법 개정안공공선택이론집단의사결정한일 양국의 행정소송법
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...
ISSN
1598-222X
Language
Korean
URI
http://lawi.snu.ac.kr/

http://hdl.handle.net/10371/9922
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 46, Number 1/4 (2005)
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