‘행정소송규칙’에 관한 현황 및 법적 과제

Abstract

The Administrative Litigation Rules were established based on the rule-making power of the Supreme Court. Originating from England and America, the rule-making authority of the Supreme Court aims to ensure the independence and expertise of the judiciary branch. In Korea, the Supreme Court is granted broad discretion to establish rules regarding litigation procedures, internal regulations, and administrative procedures under the Constitution, even without the basis of law. However, Article 108 of the Constitution contrasts with Anglo-American systems in that the Article recognizes the supremacy of law over conflicting statutory and Supreme Court Rules, thereby affirming the principle of legal superiority. The Administrative Litigation Act has prompted demands for reform from academia, as it has long been left as is since its comprehensive revision in 1984. Now that the Administrative Litigation Rules have been established, such demands are expected to be met to a significant extent. It is noteworthy that the rules reflect significant aspects of past judicial precedents and legal principles adopted by the Supreme Court with regard to interpreting provisions of the Administrative Litigation Act, or common practices implemented without legal basis. However, uniformly regulating substantive legal interpretations based on Supreme Court Rules may contradict the purpose of Article 108 of the Constitution. Moreover, even for matters concerning litigation procedures, it is more preferable to regulate essential issues on realizing citizens' fundamental rights directly by law. In Korea, the process of establishing Supreme Court Rules is devoid of involvement from the National Assembly, and the sole procedural controls are inquiries of opinions from relevant agencies and prior announcements of legislation. Relying solely on such procedures, however, is limited in securing democratic legitimacy. Because judicial reviews for unlawful Supreme Court Rules are carried out by the same body responsible for the establishment, concerns arise over the effectiveness of judiciary controls. Therefore, supplementary legal measures thereof are called for, as well as proactive efforts for the revision of the Administrative Litigation Act.