INTRODUCTION
The institution of �administrative litigation’ of a country reflects the country’s constitutionally defined separation of powers and the checks and balances among the various branches of its government.
Thus, an examination of the actual practice of administrative litigation in a country reveals how power is allocated within that country and gives insight into the role of each branch in realizing the rule of law. Further, such an examination can also reveal the status and role of the �citizen’ in the political community, both in normative and descriptive dimensions. Through administrative litigation, a citizen can be a defensive claimant for his legal rights and an aggressive participant in legal control of administrative power.Generally, the above issues are crystallized in the legal doctrines of judicial reviewability and scope of review in administrative litigation. Judicial reviewability decisions are based on the following questions: what type of administrative acts will be subject tojudicial review?; who is entitled to requestjudicial review of administrative decisions?; what kind of judicial intervention is allowed? Issues relating to scope of review mainly concern �to what extent courts should respect administrative decisions.’ Another important issue concerns �who is to decide the above issues in concrete cases.’ Though courts will have the final say, Congress also has the power and ability to decide the limit of judicial review if it so chooses.
One of the distinctions of practices and theories of administrative litigation in Korea is that much more weight has been given to issues of reviewability than to those of the scope of review on the merits. It is because the door to court has been so narrow that the social issues which deserve judicial scrutiny could not be brought before the judges for the merits and the social consensus has not been reached on how broadly the judiciary should intervene to control administrative power. During the past 20 years, since civilian government was restored in 1988 under the present Constitution, the advance of democratizaÂtion and legalization has affected the attitudes of the general public toward public power and the attitudes of courts toward the executive branch.
As a result, the threshold for judicial intervention in administrative power has been lowered constantly and gradually. There were also two unsuccessful attempts to reform the Administrative Litigation Act. In 2004 the Supreme Court published its own amendment proposal which broadened dramatically the administrative activities subject to judicial review and the standing. Then, in 2006, the Department of Justice prepared and sent to Congress a separate government reform bill of the Act, which didn’t include any change to expand reviewable activities and standing. The Department of Justice, representing the administrative branch, preferred a gradual expanding of judicial review through courts’ case law to a clear legislative calling for change.In providing an overview of administrative litigation, it should be noted that there are multiple fora for and remedies of judicial review over the public administration. The principal one is an �appeal suit’ (hang-go so song) under the Administrative Litigation Act. When it is not available, a �constitutional complaint’ against unconstitutional exercise of public power at the Constitutional Court, pursuant to the Constitutional Court Act, can be a last resort. To seek money damages against the state or local government in civil court can be an effective ex-post remedy. As an example of this, I will focus on the judicial review system under the Administrative Litigation Act. But the influence of constitutional complaints at the Constitutional Court on the recent dynamics of judicial review is so important that it will also be discusssed. In addition, tort suits against the State will be briefly mentioned as well.
II.