THE HISTORY AND LEGAL SOURCES OF ADMINISTRATIVE LITIGATION
1. A Brief History of the Administrative Litigation Act
Following the establishment of the independent government of the Republic of Korea in 1948, the �drafting committee of a statute for judicial relief from administrative infringement’ was organized at the Ministry of Government Legislation on 26 December 1948.
The first Administrative Litigation Act was enacted in 1951 during the Korean War. The Act, which consisted of 14 clauses, was modelled on the 1948 Act for Special Provisions concerning the Procedure of Administrative Suits in Japan.[425]The 18 years of authoritarian presidency under President Park Chung Hee (1961-1979) obstructed the institutional development of administrative litigaÂtion. The government had adopted as its national strategy economic developÂment, driven by strong initiatives of a centralized government, which conferred on the President and his administration powers superior to those of the legislative and judicial bodies. Naturally, the need for legal control over administrative power was raised, but actual judicial review remained focused on relatively narrow areas of administrative acts to protect a relatively narrow scope of individuals’ rights.
Since the end of President Park’s presidency in 1979, Korean society has gone through rapid changes in terms of democracy and the rule of law. The role of judicial review has also constantly expanded. In 1984, the Administrative Litigation Act was amended and the basic structure of the current administrative litigation system was established. It adopted adminisÂtrative appeal procedures as a prerequisite to judicial review in court. The administrative cases where a claimant did not receive a satisfactory remedy through administrative appeal procedures had to be brought directly to the High Court (appellate court in Korea), not the District Court.
That is, only two opportunities for judicial review were permitted for administrative litigation, unlike civil or criminal litigations where three opportunities are permitted.In 1994, as a part of general judicial reform, the Act was amended to bring important changes to the administrative litigation system. The 1994 Act repealed the requirement of exhaustion of the administrative appeal procedure so that the aggrieved person could choose to go directly to the court without first trying an administrative appeal.[426] Under the Act, the Administrative Court was established as a first instance special court for administrative litigation.
2. The Legal Sources of Administrative Litigation
A. Constitution
According to Article 107(2) of the Constitution, the Supreme Court has the power to make final decisions on the constitutionality or legality of adminisÂtrative decrees, regulations or actions. In that the primary power of judicial review of administrative acts is conferred on the ordinary court system rather than a separate administrative court system (e.g., the Conseil d’Etat of France), it is similar to the Anglo-American judicial system. Though the jurisÂdiction of first instance of administrative litigation had belonged to the â€?administrative court’ since 1994, it is still a part of the universal judiciary system under the High Court and the Supreme Court. General courts, not the Constitutional Court, have the power to decide issues of constitutionality as far as administrative acts are concerned.
B. Statutes
The Administrative Litigation Act (The Act) applies as a general law unless other statutes state otherwise. It consists of 46 sections, prescribing special provisions about the forms of action, parties, procedures, and legal effect of judgments of administrative litigation. The Act is not a self-sufficient law for administrative litigation. According to section 8 of the Act, the Civil Litigation Act, the Civil Enforcement Act, and the Court Organization Act can also be applicable in administrative litigation.[427]
Sometimes, individual statutes that regulate specific administrative programs have special provisions concerning administrative litigation. For example, under the Act, in principle, the administrative appeal is an optional procedure for the claimant.
However, section 56(2) of the Framework Act on National Taxes provides that a person who seeks remedy against unlawful taxation has to exhaust the tax authority’s appeal procedure before going to court making it a compulsory prerequisite procedure. Some statutes have specific provisions regarding reviewability or procedures. Section 20 of the Official Information Disclosure Act provides that anyone whose application for disclosure of official information is denied can seek judicial review withÂout showing further legal interest. It also provides closed court procedure to decide on disclosing confidential information.C. Administrative law cases
Because many issues surrounding administrative litigation concern judicial power of statutory interpretation, such issues must ultimately be resolved by the courts. The applicable provisions of the Act are phrased in very broad and abstract terms and, as such, require judicial interpretation. Doctrines related to the availability of judicial review, standing, and appropriateness of various remedies are formulated by court decisions. Therefore, administrative law cases are important sources of law.
D. Legal theories and doctrines
Unfortunately, Korea did not have the luck of developing its own legal systems or theories in a gradual and natural fashion. The initial development of Korean legal institutions and theories necessarily relied on the import of ideas from other countries, such as Japan and those in the West (especially Germany). Now, such dependency on foreign legal sources seems to be transÂforming more into a sort of global assimilation of Korean and foreign law. Immediately after colonial independence, administrative litigation theories were strongly influenced by those of Japan. In subsequent years, the next generation of Korean legal academics were strongly influenced by German legal theories. The influence of Japanese and German legal theories contributed to the orientation of Korean administrative litigation toward the protection of individual rights rather than a judicial check on administrative power.
Further, many legal doctrines found in the German system of adminisÂtrative litigation are referred to in interpreting important legal concepts of the Act (for example, standing, reviewable acts). Many scholars have pointed out that the discrepancy between the Act’s plain text and the legal doctrines rooted in German law poses difficult questions in the interpretation of the Act, though the solutions they suggest to rectify these questions vary widely. Some see hope in revising the Act to make it more like the German Act. Others insist that the Act should be interpreted based on the legislative intentions of our own legislature.Deepening democracy seems to also encourage the academic endeavor to develop new and original models of administrative litigation in light of both legal institution and theories, which can accommodate the social changes and the legal culture of Korea. Some administrative scholars suggest that broader and far-reaching judicial review against administrative agencies is desirable, but others skeptical of courts’ role emphasize a heightened role of the legislaÂtive body. Recently in Korea, serious and concrete discussions have taken place concerning the role of each branch of government under the principle of separation of powers. The future administrative litigation of Korea will be formulated through such discussions. It is noteworthy that such endeavors have also galvanized the comparative study of administrative litigation of other countries, such as France, Great Britain, and the United States.[428]
III.