위법한 부관과 행정소송* - 판례와 소송실무를 중심으로 -

Abstract

It is not uncommon for an administrative agency to add various collateral clauses to a beneficial administrative act. In such cases, if a collateral clauses is illegal, one may cancel the collateral clause of the burden independently by an administrative litigation according to the current case law. However, in cases where other kinds of collateral clauses are involved, one may not cancel such collateral clauses independently but he or she must cancel the entire administrative act including collateral clauses in question. However, as it is possible to cancel the administrative act partially and the adding of a collateral clause is part of the entire administrative act, it will be possible to demand only a collateral clause to be cancelled in an administrative litigation. Also, it is argued that, if a collateral clause is important and essential part of the main administrative act, the canceling of only the collateral clause is impossible. But, it must be argued that the decision on whether to cancel a collateral clause depends on the judgment of illegality of that particular collateral clause. If the remaining main administrative act becomes inappropriate, or it is such that the administrative agency may not have executed the administrative act if there had not been for the collateral clause, the agency may cancel the main administrative act, revoke, or add a new collateral clause to the act according to the changed circumstances. Therefore, in an administrative litigation, it is expected that the current case law which permits only the collateral clause of the burden to be cancelled independently will be changed such that a collateral clause may be cancelled independently in all collateral clauses.