附款의 本質論을 바탕으로 한 그 구제론적 法理體系의 재구성

이상천(Lee, Sang-Cheon) 한국비교공법학회 2013 公法學硏究 Vol.14 No.1

부관(附款) 통제(統制)로서의 진정일부취소소송 활용에 관한 소고

이상천 ( Sang Cheon Lee ) 홍익대학교 법학연구소 2013 홍익법학 Vol.14 No.1

Administrative act is not so elastic through its strict standardization. Administrative agency should choose one to do or not to do, and there is no way but the two. This situation is not so useful and efficient to both sides, administrative agency and its counterpart. Supplementary clause on administrative act can tenuate its strictness and helps administrative act escape from too excessive standardization. But we should be alerted to the abuse of supplementary clause by administrative agency`s side. Thus the legal control of supplementary clause on administrative act is recommended. Following to our case law, only burden among supplementary clauses is regarded as an independent ``declaration of will`` seperated from its main administrative act and could be suited and sentenced alone, but the others not. Afterwards, as society develops forwards the more supplementary clauses will get their independence from main administrative act and be treated as an administrative act. Before 1991, all the supplementary clauses had been considered that they should be treated legally always with their main administrative act, but since 1991, burden could have been treated independently from its main dministrative act. And the same flow would go on. The above flow has been spreading theoretically by the name of ``lawsuit of impure partial cancellation`` against the view of case law. But it is doubtful whether the above form of lawsuit could be possible or not by the present legal system. In ways of interpreting law to control supplementary clause, we could take the three. One is to grant ``partial cancellation`` by the possibility of seperation from its main administrative act, another is to grant ``partial cancellation`` through the recognition of its independent presence, the other would be to grant ``partial cancellation`` by giving ``character of disposal``. In legistlative way, the legistlation of lawsuit for performance of obligation would be the most useful and efficient. In short, it is the most useful and efficient to grant every supplementary clause ``character of disposal`` to control it, which enables us to make use of ``lawsuit of pure partial cancellation``. Also it means that all supplementary clauses could be treated as an independent ``declaration of will`` and be regarded as an perfect object elligible for legal sue. If so, ``lawsuit of pure partial cancellation`` to all supplementary clauses could be possible. After that, the remaining point would be the problems of validity of supplementary clause in relation with the main administrative act in side of substantial law, which could be treated in main dispute in the name of ``possibility of independent cancellation``. However, it is strongly recommended that lawsuit for performance of obligation should be legistlated to do that.

국내 벤처기업의 업령(業齡)에 따른 성과 결정요인

이상천(Sang Cheon Lee),고봉상(Bong Sang Go),용세중(Se Jung yong) 대한산업공학회 2004 대한산업공학회 추계학술대회논문집 Vol.2004 No.11

國家賠償法 제2조 제1항의 立法論上 問題點

이상천(Lee Sang-Cheon) 행정법이론실무학회 2010 행정법연구 Vol.- No.26

According to the present State Compensation Act Article 2(1), the definition of 'private persons entrusted with public duties' falls within the 'public officials'. Thus the 'private persons entrusted with public duties' take no civil responsibilities against both the government's and the victims' side as far as without purpose or gross negligence by the above Act Article 2(3). But the 'private persons entrusted with public duties' which has independence on organization and operation should take the civil responsibilities for their prvious deeds. Just the principle of liability with fault should be adapted for their deeds. If not so, it means the violation of equity, and it leads to the government's financial overload, and the reduction of carefulness to prevent accidents. For the above reasons, the principle of liability with fault should be adapted widely even in the area of 'private persons entrusted with public duties'. Firstly, the 'private persons entrusted with public duties' in the above 2(1) means the ones which has independence of low degree below average in relevance with the government. The ones which has independence of high degree doesn't go into it on the above 2(1). The ones which has independence of comparatively high degree from the government should be ruled by the principle of joint-malfeasance liabilities if possible. And in the cases as against the highly independed ones the principle of joint-malfeasance liabilities should be applied as far as it goes. Even though in the above cases the clauses of 'State Compensation Act' should be applied, it could be interpreted that the 'private persons entrusted with public duties' should answer for what they had done regardless of gross negligence or not. Secondly, for the intention of legistlation according to the legal view which the court and academic circles went after, the expression of 'private persons entrusted with public duties' is inadequate. The expression of 'the private persons who could be measured as entered into administrative organs, in concrete cases, entrusted with public duties' would have been better for that meaning. Thirdly, However if the 'private persons entrusted with public duties' had no assets to pay for their liabilities to the errors, the victims couldn't be saved. Thus it is recommended that the legal steps making up the shortage of their paying abilities should be taken. In contracting of trusting public services, the way of liabilities apportionment should be fixed and it is recommended that the above private persons should take out a policy on the liability for what they did. The matter of gross negligence or not is not the one of scale of the compensation sum. The size of compensation sum doesn't go with the degree of negligence. Even though the 'private persons entrusted with public duties' committed a slight error, the size of government's compensation sum could be gross. The expression that the private persons should be free from liabilities regardless of the degree of negligence would overload the State and local government's finance. Finally, 'State Compensation Act Article 2(1)' should be revised.

도시생태현황(Biotope등급)에 대한 公法的 檢討

李相千(Lee, Sang-Cheon) 한국비교공법학회 2016 공법학연구 Vol.17 No.2

부진정일부취소소송의 성립가능성론에 대한 비판적 고찰

이상천 ( Sang Cheon Lee ) 이화여자대학교 법학연구소 2013 法學論集 Vol.17 No.3

In my thought, the crititical discrimination of burden and ‘the others except burden’ would be wrong. Generally the case law and most of the theories say that only ‘burden’ has a different being seperated from the main administrative act and ‘the other supplementary clauses except burden’ belong to that. Under this mistaken premises, the case law and most of the theories have spread widely. The concept of litigation of impure partial cancellation appeared for control of supplementary clause against reasonability. The mistaken ‘dogmatik’ needs another wrong ‘dogmatik’ to support the previous one. Consequentially, we should treat ‘administrative act with supplementary clause’ as total one act and couldn`t separate supplementary clause from the main administrative act. Reluctantly, the threories thought out the so-called ‘litigation of impure partial cancellation’ to be able to control only just the supplementary clause without touching the main administrative act. In general opinion, ‘the other supplementary clauses except burden’ have no character of disposal. Thus they couldn`t be treated legally as an object of lawsuit. For the object with no character of disposal couldn`t be an object of lawsuit and be written as the text of judgment. Thus the theory of litigation of impure partial cancellation has the error in itself that an object with no character of disposal is taken as the text of judgment. To avoid that criticism, it says that the total ‘administrative act with supplementary clause’ is under legal trial and it has no problem in itself by that. But the expression ‘the total administrative act with supplementary clause is being taken under the legal trial’ doesn`t go with all the theories on the object of lawsuit in administrative litigation. If we try to cancell only just the supplementary clause by the expression of the text of judgment, it would be always just the ‘litigation of pure partial cancellation’, and it shouldn`t differ from that. If ‘the other supplementary clauses except burden’ have no character of disposal, we should say that we could not take them as an elligible object of lawsuit. Thus the theory of litigation of impure partial cancellation couldn`t solve the problem of character of disposal. In connection with the matter of character of disposal, this thesis says only that the theory of litigation of impure partial cancellation couldn`t be taken legally. But it doesn`t mean that the theory of litigation of pure partial cancellation couldn`t be taken legally. On the basis of recognizing character of disposal to every supplementary clause, we could take the litigation of pure partial cancellation for all supplementary clauses.

법인처벌론(法人處罰論)으로서의 조직고의론(組織故意論)

이상천 ( Sang Cheon Lee ) 법조협회 2015 法曹 Vol.64 No.4

In any case, the action of a natural person who is a member of a corporate should be analyzed legally in the sense that it is one of the corporation``s activities. The constitutional court says that the corporate’ liability in relation with the meaning of joint penal provisions is not on the premise of its natural person’ crime. Thus the legal character of corporate liability is not a kind of vicarious liability but its own. If so, the theory of enterprise punishment within the framework of traditional theory of criminal law should be shown necessarily in consideration of the corporate’s own character. In the area of environmental administration, it is not a proper way of protecting environment from enterprise activities to place a greater emphasis on punishing natural person than on the corporate itself. A business organization has its own way of thought, and it exists apart from that of a natural person, a member of the corporate. There has been the theory of collective knowledge and the theory of organization model to control business activities by imposing criminal penalty on the corporate itself in United States of America. Besides, there has been the theory of business organization liability in Japan. The above theories say all the same thing that the corporate itself should and could bear the criminal liability. A nature person has little significance in influencing business activities and should be subject to the corporate’s command which is under the sovereignty of Jaebul, the group of enterprises. The focus should be on punishing the corporate itself in the area of environmental administration in which only the corporate itself reveals itself in the sense that its nature person has little significance in business activities. Actually as possible as can be, it is needed to develop the theory actively that the criminal punishment should be imposed on the corporate itself than on the natural person. And the theory should not hurt the principle of self liability in concern with imposing criminal punishment on the corporate itself. Under the establishment of the definition of organization knowledge we could regard it as a subjective illigal factor which should be needed for composing crime in case of a natural person. In conclusion, ‘organization knowledge’ should be composed as a tool of protecting our natural environment efficiently from the corporate’s enterprise activities.

「법률상(法律上) 이익(利益)」개념의 한계(限界)

이상천 ( Lee Sang-cheon ) 한국외국어대학교 법학연구소 2010 외법논집 Vol.34 No.1

The definition of 'interest in law' has been formed as material subjective right to the administration, and has been projected onto the laws on the litigation and trial of administrative disputes. Thus, it is apprehended as in side of material law or as in side of laws on the litigation and trial of administrative disputes. Perhaps the above way of apprehension will be lasting afterwards. The 'interest in law' has been in position for the status of private individual to administration. The theory of interest in law will be ever improved till the basic human rights be contained within interest in law. But it is doubtful that the present system of administrative relief will be lasting long. For the theory of interest in law itself is blocking the advancement of positive administrative relief and has contradictory legal logic in itself which is that the legistlation takes almost all the private interests into consideration. Actually, it's not true. The law is not competent in all sides. The theory of interest in law insists that the legal rights shoud be based on the legistlation of the assembly, which means that the assembly dicides the zone of legal interests by discretion. We call it legistlative discretion. The theory of interest in law is law-centered, i.e. legistlative descretion-centered definition. It is self-contradicting by containing some basic human rights into itself. Thus, it is not proper or reasonable legistlation that one who has interest in law has standing on the judicial litigation and administrative trial of administrative disputes. Someday 'interest in law' will be alternated with the definition of 'valuable interest worth protecting in law' under the system of administrative relief in the center of which the basic human rights exist. These ongoing controversies on the zone of protection for private individuals are just only the way of thinking about the basic human rights by constitutional law. We had come from the world of 'right', have stayed too long at the world of 'interest in law', and will be in the world of 'value'. It is just the time that we should start the rearrangement of the system of administrative relief. In the heart of the new one will be the basic human rights by constitutional law.

행정내부규율사항론(行政內部規律事項論)

이상천 ( Sang Cheon Lee ) 단국대학교 법학연구소 2010 법학논총 Vol.34 No.2

`Inner-Autonomous Items in Administration` has not had so much spotlight in Administrative Law. There have been no so deep study on it. The traditional study on Special Power Relations has not been discussed under the premise of the conception, `Inner-Autonomous Items in Administration`. It has been treated only as a kind of conception of results. Thus it has not taken a leading role in Administrative Law and has had little recognitions. But We should deduce the conception of items `Inner-Autonomous Items in Administration` from the view point of the whole legal order and by utilizing the conception of `Inner-Autonomous Items in Administration` we should take the conception. Thus we should study the concerned parts of Administration Law and make use of the theory on it to access administrative law. The way of recognizing it in functional way helps us solve the unsolved problems easily. The `Inner-Autonomous Items in Administration` is the core of administration. The study of `Inner-Autonomous Items in Administration` helps us find out the substance of Administration and by that analyse it more functionally. It is another way of access to the Administrative Law.

農地保全負擔金 부과에 관한 小考 : 행정심판재결례에 대한 반론을 중심으로

李相千(Lee Sang-Cheon) 한국비교공법학회 2012 공법학연구 Vol.13 No.1

결국 지목변경된 '대지'를 매수한 제3의 매득자에게 농지보전부담금을 부과할 수 있느냐의 문제가 행정심판으로 문제가 되고 있다. 그러나, 아무래도 깊은 법리적 검토는 거치지 못한채 기각되고 있는 실정이다. 첫째, 농지보전부담금 부과의 근거규정인 농지법 제38조등은 문의적 해석으로도 지목변경 이전의 능지전용과정에서 농지보전부담금이 부과되는 과정을 규율하는 규정인 것이지 이미 지목변경된 '대지'에 관한 농지보전부담금의 부과까지를 규율하는 규정이라고는 볼 수 없다. 둘째, 측량·수로조사 및 지적에 관한 법률 제81조, 동법 시행령 제67조, 동법 시행규칙 제84조 등에 의해 지목변경은 신청에 의한 행정의 행위로 농지전용등으로 인한 최종 정리단계의 절차인 것이므로 농지보전부담금은 지목변경 이전에 거치는 것이어서 이미 지목변경된 '대지'에 농지보전부담금이 부과된다는 입범례나 해석론은 허용되지 않는다 할 것이다. 셋째, 농지보전부담금의 부과취지가 농지전용으로 인한 농지상실을 보전한다는 농지조성비적 성격과 농촌경제를 도모한다는 부담금의 성격을 병유한다고 할 것인데 그 성격으로 보아 그 부과는 한 번으로 족한 것이지 이중삼중으로 부과하겠다는 취지로는 해석되어지기 곤란한 면이 있어 이미 지목변경절차에서 부과되었거나 부과될 수 있었던 농지보전부담금을 지목변경된 결과의 '대지'를 매수한 제3의 전득자에게 부과시킨다는 것은 온전히 '대지'로 알고 매득한 그 제3 매득자의 재산권적 지위를 부당하게 침해하는 입범례라고 밖에는 할 수 없는 것이다. 넷째, 농지법 제2조의 '농지'의 개념상 공부상의 지목을 불문하고 이용현황을 기준으로 파악한다고 하고 있으나, 그 의미는 농지전용절차 내지 농지조성비·농지전용부담금 내지 농지보전부담금이 부과되는 입법례가 생기기 전의 토지에 대하여 적용될 소지가 있는 것이지 이미 지목변경과정에서 농지보전부담금이 부과되었거나 부과될 소지가 있었던 토지에 대하여 지목변경된 결과의 '대지'를 전득한 제3자에게 농지보전부담금이 부과될 수 있다는 의미는 아닌 것이다. 다섯째, 공법적 규정이 사법적 지위를 불안하게 할 입법재량도 있을 수는 있으나 어디까지나 그러한 公·私法상의 괴리는 헌법이 말하는 비례의 원칙 범위내이어야 할 것인데, 지목변경절차 일반에 비추어 이미 '대지'로 지목변경된 토지를 매득한 제3자에게 농지보전부담금을 부과한다는 것은 부당한 공익만을 내세우는 것으로 입법재량의 남용이라 할 것이다. 그러나 농지보전부담금의 근거규정인 농지법 제38조등에 대한 문의적 해석으로 합헌적 해석이 가능한 이상 동조등이 위헌이라고 판단해 버릴 것은 아니므로 지목변경된 '대지'를 매수한 제3의 전득자는 농지보전부담금을 부과받을 법적 지위에 있지 않다고 해석할 것이다. 이상의 근거에도 불구하고 법원의 판례는 생성되지 않으면서 행정심판에서 지목변경된 '대지'를 매수한 전득자도 농지보전부담금을 부과받을 법적 지위에 있음을 전제로 한 재결례가 반복될 수 있다는 것은 생각해 볼 문제이다. 그 적극적 당사자가 법원에의 항고소송을 제기하지 않고 불복을 중단함은 '권리 위에 잠자는 자' 라고 할 수도 있을 것이나, 불복소송을 포기하는 이유가 거듭된 행정심판재결례에 비추어 승소가능성이 없다고 오신한 결과라면 오히려 위 당사자를 위해 이러한 학리적 논구로 그 법적 지위를 명확히 해 줄 필요가 있다고 할 것이다. There are some cases of dicision at administrative appeals about charging farmland preservation charges on the third party who purchased a 'building site' on public documents. The legal status of the above third party still remains suspended about the problem of being charged of farmland preservation charges. And some cases simillar to the above cases would be likely to be repeated over and over. According to the dicision at administrative appeals the administrative appeals are not accepted. Thus the farmland preservation charges should be levied on the third party. But we can not see the results of studying the legal status of the above third party. Firstly, Farmland Act Article 38 on levying farmland preservation charges is adapted to controlling the procedure of farmland diversion before land category change, but not to doing that before land category change. Secondly, according to the related provisions of Farmland Act and its annexed codes, for example act on land survey, water way survey and cadastral records Article 81, the diversion of farmland is carried out before land category change, Thus farmland preservation charges couldn't be levied on the owner of 'building site' which had already gone through land category change. Thirdly, in view of the character of farmland preservation charges which contains both of the two which are that of making farmland and that of charging special purposes for agricultural villages, farmland preservation charges should be levied once per a farmland, but not in a double or in a triple way. Thus the farmland preservation charges should not levied on third party who purchased the building site' believing that it is just a 'building site' as it is on publice records. Fourthly, according to the Farmland Act Article 2 the 'Farmland Act' is decided not by the public records, but by the situation as it is used. It means that farmland preservation charges could not be levied on the building site which went through land category change under the legal systemic situation of farmland preservation charges. But it could be adapted to the building site not under the legal systemic situation of farmland preservation charges. Fifthly, the difference between the contents of public law and those of private law should not be so wide. The difference should be within constitutional limit. In consideration of general procedure of land category change, farmland preservation charges should not levied on the third party who purchased the building site which already had undergone land category change. Under the circumstances of no court decision about the above case, the dicision at administrative appeals which is not correct would be repeated. But it is not proper, The repeated academic study on the above case would be necessary and helpful to solve this stationary situation.