공법상 원상회복청구소송과 행정소송법 제10조 관련청구소송의 병합에 관한 검토 - 대법원 2026. 4. 2. 선고 2025두35330 판결과 관련하여 -

초록

This paper critically examines the recent Supreme Court decision (2025Du35330, April 2, 2026), which upheld a lower court’s dismissal of a claim for restitution merged with a lawsuit seeking confirmation of the nullity of an ex officio cancellation of a seal registration. The Court ruled that the restitution claim constituted an inadmissible ‘action for performance’ (mandamus) under the current Administrative Litigation Act. However, a claim for restitution is fundamentally distinct from an action for performance, which merely compels a future administrative act. It is rooted in the Folgenbeseitigungsanspruch (Right to the Removal of Consequences) developed in Germany-a public law right to remove an illegal state resulting from unlawful administrative action and restore the situation to its ‘status quo ante’. This right finds its basis in constitutional values, such as the defensive function of fundamental rights, the principle of effective legal protection, and the rule of law. Under the German Code of Administrative Court Procedure (VwGO), restitution is realized either by merging it with an action for rescission or through a general performance action. Similarly, ‘Article 10, Paragraph 2 of the Korean Administrative Litigation Act’ explicitly lists ‘claims for restitution’ as a related claim that can be merged with a primary appeal. Therefore, the Supreme Court’s decision to treat the claim simply as an inadmissible action for performance while overlooking the statutory provision for merging related claims is a result of a misunderstanding of legal principles. Such a ruling risks infringing upon citizens’ right to effective judicial remedies and their right to trial. This study emphasizes that administrative actions for restitution must be actively recognized through party litigation or as merged related claims in an appeal.

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