行政訴訟上 假救濟制度에 관한 硏究
(A) Study on the Interim Relief in the Administrative Litigation
행정소송 가구제제도 행정소송법;
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According to the Constitution Article 27, (1), "All citizens shall have the right to trial according to law by judges qualified and appointed under the Constitution and Act.", all the citizens have the right of a claim for a trial. Furthermore, on the Article 27, (3), "All citizens shall have the right to a speedy trial.", the illegal disruption of the fundamental human rights by a lagging trial can be protected. The administrative law which embodies the Constitution and depends upon the principle of the Constitution when the translation and application of administrative laws are needed, primarily has the principle of protecting the citizens' fundamental human rights, and other principles such as the separation of powers, and the constitutional state on the administrative law are followed. The administrative law prescribes the administrative action by the administrative organizations to protect the citizens' fundamental human rights, and controls the administrative action beforehand and afterward. The meaning of citizens' right protection from such an administrative action can strongly be shown by the administrative procedures and relieves. On the other hand, the administrative law reflects the public relationship through the administrative action, and needs the legal intention-oriented decision. Practically, the purpose of the administrative law is to activate the speedy administrative actions with reflecting the reality of the individual public administration. The current public administration has been changed from the accomplishment of the welfare state to the benefit-oriented administrative system. And it puts more weight not on regulative administrative actions to limit citizens' rights and duties, but on beneficial administrative actions to enlarge citizens' rights and duties. However, it does not fully function on the citizens' right relief due to the orientation of administrative convenience on the aspect of speediness and effectiveness of administrative actions. In 18th and 19th centuries, the state power of a modern State was positioned ahead of its citizens that were seen as the object of the governance. But citizens in a present State are the foundation of existence of a State and a State possesses responsibilities and duties to secure the citizens' fundamental human rights. The Constitution of the Republic of Korea, Article 10, states "All citizens shall be assured of human dignity and worth and have the right to pursue happiness. It is the duty of the State to confirm and guarantee the fundamental and inviolable human rights of individuals." It is clearly indicated that the State has a duty to guarantee the citizens' fundamental human rights. As stated above, a State' duty to secure fundamental human rights has been requested that not only it can not passively disrupt fundamental rights of individuals, but also it actively remedies the disruptions of the fundamental human rights of individuals. Especially, as a modern society has been diversified and driven toward an administrative State, there have been disruptions of individual rights frequently occurred by administrative actions and strong demands for the right relief of disruptions. However, the administrative action predominantly occurred against individuals is different from the legal action horizontally occurred on the civil law. When the administrative action is sued, the right relief is not perfectly completed due to the characteristics of the administrative action to achieve the public interests by using the power to restrain, power to make it equal, power to retain and power to enforce. Before the final judgment on this kind of administrative litigation is made, administrative action already takes effects or is completed, therefore citizens' right relief occurred by the irrelevant administrative action is usually implemented later. According to the Administrative Litigation Act, Article 23, (1), " The institution of the withdrawal lawsuit is not subject to the effect and enforcement of court's decision, and the continuation of legal procedures.", it is clearly indicated that the pending lawsuit can not be stoped by instituting the withdrawal lawsuit, meaning that citizens' rights are not substantially protected beforehand. Accordingly, the relief system to protect citizens' rights is needed to prepare for the case that the administrative action initially designed for public interests disturbs citizens' rights. Consequently, the purpose of this thesis is to contribute to securing citizens' fundamental human rights by studying problems and solutions on the interim relief, a temporary right protection system in the administrative litigation, and to promote the legal suitableness on the administrative action.