재결 자체의 고유한 위법을 인정한 재결취소사건의 검토 - 절차적 하자 재결 및 판단 누락 재결 -

초록

Recently, I encountered a case where the plaintiff (the petitioner for the adjudication) prevailed in two separate lawsuits seeking the cancellation of two separate dismissals of a single subject to the adjudication. The provision in Article 19 of the Administrative Litigation Act, which states that “That in the case of a suit seeking the revocation of an adjudication, it is permitted only when the adjudication itself is illegal.” adopts the principle of the original disposition. The question arises as to what constitutes a case where the adjudication itself is inherently illegal. In the first rescission lawsuit, it was recognized that procedural defects in the decision substantially infringed upon the right to defense related to service of process. In the second rescission lawsuit, a formal or substantive illegality was recognized: the adjudication's reasoning failed to contain a judgment sufficient to establish that the decision's content was justified. These two rescissions represent cases where rescission was granted based on grounds not readily found in previous practice. This paper introduces and provides a detailed analysis and review of these cases.

키워드