행정소송법 개정과 항고소송의 대상적격

Abstract

The revision of the Administrative Litigation Act is a goal that is long overdue for the effectiveness of administrative litigation and the provision of workable relief against administrative activities. The Supreme Court’s opinion on revising the Administrative Litigation Act, prepared for four years and proposed in 2006, is significant in that it has sought a fundamental change in the administrative litigation system by expanding the subject of appeals litigation. To this end, two solutions have been recommended: one to introduce the concept of “administrative action” in place of the “administrative disposition”; the other to include secondary legislation as the subject of appeals litigation. While this attempt faced much opposition and was excluded in the later bills made by the Ministry of Justice, it remains a starting point for the discussion on the reform of the administrative litigation system.
 As a precursor to the discussion, this paper examines the gradual expansion of the scope of administrative disposition witnessed in the Supreme Court’s judgments that began in the 2000s and the current situation concerning the constitutional complaints on subordinate legislation. This paper then focuses on the two solutions discussed above. The nature of the appeals litigation, and the cancellation litigation, in particular, is analyzed to support the arguments. Also analysed are the aspects specific to appeals litigation against secondary legislation. Finally, this paper emphasizes the necessity to develop theories to harmonize the concepts of administrative disposition under the three central Acts: the Administrative Litigation Act, the General Act on Public Administration, and the Administrative Procedure Act.
 The Supreme Court should keep and expand its judicial precedent to widen the scope of administrative dispositions. Meanwhile, when the constitutional complaint has taken root as a primary remedy for secondary legislation, the issue of introducing appeals litigation against secondary legislation seems less viable in practice than in theory. Acknowledging this reality, the first step the judiciary has to take is to abandon its reluctance to declare the illegality of secondary legislation.
 Also needed is the courts' change of attitude toward the overall interpretation of the Administrative Litigation Act. When the public attention to the revision of the Act is unfortunately lacking, and when it seems less likely to change the administrative system by legislative means, the Supreme Court may need to try and change the system through the change in the interpretation. It might well serve as a driving force for revising the Act in the long run.