유럽人權協約上 國內的 救濟完了原則과 行政慣行 = The Rule of Exhaustion of Local Remedies and Administrative Practices the European Convention on Human Rights

다국어 초록 (Multilingual Abstract)

Local Rededies Rule in general international law has been played in diplomatic protection. The legal basis of the rule may be found in customary international law as well as in treaty practice. The International judiciary, for example, the permanent Court of International Justice and the International Court of Justice has applied the rule consistently.
Local remedies rule in general international law was also inserted in European Convention on Human Rights(Art.26) and in the United Nations Covenat on Civil and Political Rights(art.41(lc)). And the rationale of the rule is found in the thought that the domestic redress is more effective than securing redress in international level.
Here it is intended to review one aspect of the local remedies rule which has been the subject of some interesting decisions in relation to administrative practices by the European Human Rights Commission. In case-law of the commission it is holded that where there is a practice of non-observance of certain convention provisions the remedies will necessarily be rendered inadequate. But the proof of the existence of certain administrative practices contrary to convention is considerably difficult. And individual applicants must be a victim of such practices according to art.25 of Convention. Therefore individual applicants do not submitt to Commission to examine in abstracto the conformity of such practices or domestic legislation with the provisions of the Convention. But the Commission has expanded the notion of victim.
Considered relation between local remedies rule and administrative proactices, it is presumed to have following effects.
In the case of complaints under the convention made by individuals, the existence of an administrative practice has been taken as evidence that no domestic remedies can exist. In inter-State applications, it appears that the Commission is prepared to accept that an administrative practice is capable of constituting a breach of the Convention without it having to be shown that any victim exits.

목차 (Table of Contents)

• Ⅰ. 序 說
• Ⅱ. 유럽人權協約의 節次構造와 제26조의 國內的 救濟原則
• 1. 協約의 節次構造
• 2. 제26조의 國內的 救濟原則
• 3. 國內的 救濟原則의 例外
• Ⅲ. 行政慣行과 國內的 救濟完了原則과의 關係:事例
• 1. 國家間 事件
• 1) First Cyprus 事件
• 2) second cyprus 事件
• 3) First Greek 事件
• 4) Second Greek 事件
• 5) Ireland v. United Kingdom 事件
• 2. 個人申請 要件
• 1) X v. Ireland 事件
• 2) Kjeldsen v. Denmark 事件
• 3) Donnelly and Others V. United Kingdom 事件
• Ⅳ. 國內的 救濟完了原則과 行政慣行과의 關係에 대한 爭點
• 1. '行政慣行' 槪念
• 2. 行政慣行과 '犧牲者'
• 3. 行政慣行과 國內的 救濟節次의 效率性
• Ⅴ. 結 論