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목 차
1권
제1장 서론
제1절 행정소송 ············································································································ 3
1. 의의 ························································································································3
2. 성질 ························································································································3
3. 기능 ························································································································4
제2절 행정소송과 민사소송의 관계 ··········································································· 4
1. 행정사건과 민사사건의 구분 ·················································································4
2. 민사소송 절차 등의 준용 ······················································································5
제3절 행정소송의 종류와 각 소송 상호 간의 관계 ·················································· 6
1. 종류 ························································································································6
가. 항고소송 ············································································································7
(1) 취소소송 ·······································································································7
(2) 무효등 확인소송 ··························································································8
(3) 부작위위법확인소송 ·····················································································9
(4) 법정 외 항고소송(무명항고소송)의 허용 여부 ·········································10
나. 당사자소송 ······································································································12
(1) 의의 등 ······································································································12
(2) 종류 ············································································································12
다. 민중소송 ··········································································································14
(1) 의의 등 ······································································································14
(2) 현행법상의 예 ····························································································14
라. 기관소송 ··········································································································25
(1) 의의 등 ······································································································25
(2) 현행법상의 예 ····························································································26
2. 각 소송 상호 간의 관계 ·····················································································29
가. 취소소송과 무효확인소송 간의 관계 ·····························································29
나. 항고소송과 당사자소송 간의 관계 ·································································30
(1) 취소소송과 당사자소송과의 관계 ·····························································30
(2) 무효확인소송과 당사자소송과의 관계 ······················································31
제2장 행정사건의 관할
제1절 행정법원 ·········································································································· 35
1. 일반법원으로서의 행정법원 ················································································35
2. 행정법원 관할의 전속성 여부 ·············································································36
가. 행정사건의 행정법원 전속 ·············································································36
나. 관할의 지정제도 ·····························································································37
다. 행정법원의 민사사건 처리 ·············································································37
제2절 토지관할 ········································································································· 38
1. 항고소송의 토지관할 ···························································································38
가. 보통재판적 ······································································································38
(1) 일반적인 보통재판적 ·················································································38
(2) 중앙행정기관 등의 특례 규정(행정소송법 9조 2항) ·······························38
(3) 행정법원이 설치되지 아니한 지역 ····························································46
나. 특별재판적 ······································································································46
2. 당사자소송의 토지관할 ························································································47
3. 토지관할의 성질 ··································································································47
제3절 사물관할 ········································································································· 48
제4절 심급관할 ········································································································· 48
제5절 민중소송 및 기관소송의 재판관할 ································································ 48
제6절 사건의 이송 ···································································································· 49
1. 이송의 의의 ·········································································································49
2. 이송할 경우 ·········································································································49
가. 관할위반으로 인한 이송 ·················································································49
나. 편의에 의한 이송 ···························································································51
(1) 민사소송법 35조의 준용에 의한 이송 ·····················································51
(2) 관련청구소송의 이송 ·················································································51
3. 이송 절차 ·············································································································54
가. 관할위반을 이유로 한 이송 ···········································································54
나. 편의에 의한 이송 ···························································································55
다. 불복 ·················································································································55
4. 이송의 효과 ·········································································································56
가. 기속력 ·············································································································56
나. 이송 전 소송행위의 효력 ···············································································57
다. 소송기록의 송부 ·····························································································57
라. 기록송부 전의 긴급처분 ·················································································57
마. 이송받은 법원의 처리 ····················································································57
제3장 당사자
제1절 개설 ················································································································· 61
제2절 당사자능력 ······································································································ 61
1. 의의 ······················································································································61
2. 항고소송 ···············································································································62
가. 원고능력 ··········································································································62
나. 피고능력 ··········································································································63
(1) 원칙 ············································································································63
(2) 공공기관의 정보공개에 관한 법률에 따른 피고능력 확대 ······················63
3. 당사자소송 ···········································································································63
4. 민중소송 및 기관소송 ·························································································63
제3절 당사자적격 ····································································································· 64
1. 의의 ······················································································································64
2. 원고적격 ···············································································································65
가. 취소소송 ··········································································································65
(1) 개설 ············································································································65
(2) 원고적격의 요건 ························································································65
(3) 처분의 상대방과 원고적격 ········································································68
(4) 처분의 제3자와 원고적격 ··········································································78
나. 무효등 확인소송 ···························································································113
다. 부작위위법확인소송 ······················································································114
라. 당사자소송 ····································································································114
마. 민중소송 및 기관소송 ··················································································115
3. 협의의 소의 이익 ······························································································115
가. 개설 ···············································································································115
나. 취소소송 ········································································································116
(1) 소의 이익 ·································································································116
(2) 처분의 효력기간 경과 ·············································································120
(3) 선행(종전)처분을 변경ㆍ흡수ㆍ취소하는 후행(후속)처분이 있는 경우 · 125
(4) 집행완료나 처분의 대상인 권리의 존속기간 만료로
원상회복이 불가능하게 된 경우 ·····························································132
(5) 사정변경으로 소송상 목적을 달성할 수 없게 된 경우 ·························137
(6) 사정변경으로 이익침해가 해소된 경우 ··················································143
(7) 특수한 문제 ·····························································································144
다. 무효등 확인소송 ···························································································149
(1) 소의 이익 ·································································································149
(2) 보충성 요건의 부적용 ·············································································150
라. 부작위위법확인소송 ······················································································150
마. 당사자소송 ····································································································152
(1) 소의 이익 ·································································································152
(2) 도시정비사건 ····························································································153
바. 민중소송 및 기관소송 ··················································································156
4. 피고적격 ·············································································································156
가. 항고소송 ········································································································156
(1) 개설 ··········································································································156
(2) 행정청 ······································································································157
(3) 처분등을 행한 행정청 ·············································································164
(4) 특별법에 의한 예외 ·················································································168
(5) 권한의 변경 등과 피고적격 ····································································170
나. 당사자소송 ····································································································171
다. 민중소송 및 기관소송 ··················································································172
제4절 당사자의 변경 ······························································································ 172
1. 개설 ····················································································································172
2. 소송승계 ·············································································································173
가. 민사소송법 준용에 따른 승계(일반승계와 특정승계) ·································173
(1) 개설 ··········································································································173
(2) 일반승계의 경우 ····················································································173
(3) 특정승계의 경우 ······················································································175
나. 권한청 변경에 따른 피고경정 ······································································175
3. 임의적 당사자변경 ·····························································································177
가. 의의 ···············································································································177
나. 원고의 변경 ··································································································179
다. 잘못 지정한 피고의 경정 ·············································································179
(1) 취지 ··········································································································179
(2) 요건 ··········································································································180
(3) 사무처리 ···································································································181
(4) 효과 ··········································································································184
라. 소의 변경에 수반되는 피고경정 ··································································185
마. 필수적 공동소송에서 누락된 당사자의 추가 ··············································186
바. 관련청구소송을 병합하는 경우 ····································································186
제5절 소송참가 ······································································································· 186
1. 의의 ····················································································································186
2. 소송참가의 형태 ································································································187
가. 행정소송법 16조에 따른 제3자의 소송참가 ···············································187
(1) 의의 및 취지 ···························································································187
(2) 요건 ··········································································································188
(3) 절차 ··········································································································189
(4) 참가인의 지위 ··························································································195
나. 행정소송법 17조에 따른 행정청의 소송참가 ·············································196
(1) 의의 및 취지 ···························································································196
(2) 요건 ··········································································································197
(3) 사무처리 ···································································································198
(4) 참가인의 지위 ··························································································198
다. 민사소송법에 의한 소송참가 ·······································································199
(1) 보조참가의 허용 여부 ·············································································199
(2) 행정청의 보조참가 ···················································································200
(3) 보조참가 이외 다른 참가의 허용성 ·······················································200
제6절 소송상의 대리인 ··························································································· 201
1. 원칙 ····················································································································201
2. 지정대리인(소송수행자) ·····················································································202
가. 지정할 수 있는 소송의 범위 ·······································································202
(1) 국가가 당사자인 사건과 항고소송 사건 ················································202
(2) 지방자치단체가 당사자인 당사자소송 ····················································202
나. 지정과 감독 ··································································································202
(1) 지정(법무부장관과 행정청의 장) ····························································202
(2) 감독 ··········································································································203
(3) 법무부장관의 권한 위임 ··········································································203
(4) 지정ㆍ해임의 방법 ···················································································204
다. 소송수행자의 권한 ························································································204
라. 법원 소관 사무 소송수행자의 보고의무 ·····················································205
마. 법무부장관의 의견 제출 ···············································································205
제4장 행정소송의 대상
제1절 항고소송의 대상 ··························································································· 209
1. 개설 ····················································································································209
가. 규범의 연혁 및 내용 ····················································································209
나. 소송요건 ········································································································210
2. 처분 ····················································································································210
가. 개념 ···············································································································210
나. 처분의 범위 ··································································································212
(1) 행정청의 행위 ··························································································212
(2) 공권력적 행위 ··························································································213
(3) 구체적 집행행위 ······················································································217
(4) 국민의 권리ㆍ의무에 직접 영향이 있는 행위 ········································219
(5) 행정처분으로서의 외형을 갖춘 행위 ······················································228
(6) 행정소송 이외의 불복절차가 따로 마련되어 있지 않을 것 ··················229
다. 처분에 관한 기타 쟁점 ················································································230
(1) 통치행위 ···································································································230
(2) 특별권력관계 내부의 행위 ······································································232
(3) 재량행위 ···································································································232
(4) 거부처분 ···································································································235
(5) 권력적 사실행위 ······················································································240
(6) 부관(附款) ·································································································241
(7) 반복된 행위 ·····························································································244
(8) 인허가의제 ·······························································································245
(9) 과징금 ······································································································248
(10) 행정상 강제 ···························································································251
(11) 신고수리행위 ·························································································263
(12) 신고납부행위(이른바 ‘확인적 부과처분’) ·············································266
(13) 경정처분 ································································································267
3. 행정심판재결 ······································································································273
가. 개설 ···············································································································273
나. 원처분주의와 재결주의 ················································································273
다. 관련청구소송의 병합 ····················································································274
라. 재결 자체에 고유한 위법 ·············································································274
(1) 의의 ··········································································································274
(2) 각하ㆍ기각재결 ························································································275
(3) 인용재결 ···································································································275
(4) 일부인용재결과 수정재결 ········································································277
마. 행정소송법 19조 단서를 위반한 소송의 처리 ············································278
바. 원처분주의에 대한 예외 ···············································································278
(1) 개설 ··········································································································278
(2) 재결주의가 채택되어 있는 예 ·································································279
4. 부작위위법확인소송의 대상 ··············································································281
가. 개설 ···············································································································281
나. 요건 ···············································································································282
(1) 신청의 존재 ·····························································································282
(2) 법규상ㆍ조리상 신청권이 있는 자의 신청 ·············································283
(3) 행정청에 대한 ‘처분등’의 신청 ······························································284
(4) 상당한 기간 ·····························································································285
(5) 처분의 부존재 ··························································································286
제2절 당사자소송의 대상 ······················································································· 287
1. 개설 ····················································································································287
가. 독자적 지위로서의 당사자소송 ····································································287
나. 공법상 계약에 관한 일반규정 신설 ·····························································288
다. 행정소송규칙에서 예시한 당사자소송의 대상 ·············································289
2. 형식적 당사자소송의 유형 ················································································290
가. 인정 필요성 ··································································································290
나. 개별 법률에서 인정되는 형식적 당사자소송의 유형 ··································290
3. 항고소송 대상과의 구분 ···················································································291
가. 구별기준 ········································································································291
나. 판례의 태도 ··································································································293
(1) 각종 사회보장 급부청구 ··········································································293
(2) 손실보상금 청구 ······················································································295
(3) 공법상 법률관계의 단절에 관한 소송 ····················································298
4. 민사소송 대상과의 구분 ···················································································301
가. 구별 실익과 구별 기준 ················································································301
(1) 구별 실익 ·································································································301
(2) 구별 기준 ·································································································302
나. 판례의 태도 ··································································································302
(1) 공법상 신분ㆍ지위 확인소송(민사소송과의 비교) ··································302
(2) 처분등으로 형성된 법률관계를 다투는 소송 ·········································303
(3) 공법상의 부당이득금반환 청구소송 및 국가배상청구소송 ····················304
(4) 공법상 계약에 관한 소송 ········································································305
(5) 도시 및 주거환경정비법 관련 소송 ·······················································307
(6) 행정주체 상호 간의 비용부담청구 등 ····················································313
제3절 민중소송과 기관소송의 대상 ········································································ 313
1. 민중소송의 대상 ································································································313
가. 주민소송 ········································································································313
(1) 개설 ··········································································································313
(2) 공금의 지출에 관한 사항 ········································································315
(3) 재산의 취득, 관리, 처분행위 ··································································318
(4) 계약의 체결ㆍ이행에 관한 사항 ·····························································320
(5) 공금의 부과ㆍ징수의 해태 ······································································321
(6) 감사청구 대상과 주민소송 대상과의 관련성 ·········································322
(7) 선행행위의 위법성 승계 문제 ·································································323
(8) 주민소송에서의 처분성 ···········································································325
나. 국민투표무효소송, 선거무효소송, 당선무효소송 ·········································326
(1) 국민투표무효소송 ····················································································326
(2) 선거무효소송 ····························································································326
(3) 당선무효소송 ····························································································327
2. 기관소송의 대상 ································································································328
가. 지방의회 의결무효소송 ················································································328
나. 감독처분에 대한 이의소송 ···········································································328
제5장 행정소송과 행정심판의 관계
제1절 입법례 ············································································································ 331
제2절 임의적 전치주의(원칙) ··················································································· 331
1. 개념 ····················································································································331
2. 임의적 전치주의에서의 행정심판의 실익 ·························································332
제3절 필요적 전치주의(예외) ·················································································· 333
1. 취지 ····················································································································333
2. 적용 범위 ···········································································································333
가. 필요적 전치를 요하는 처분 ·········································································333
(1) ‘법률’의 근거 ···························································································333
(2) 명시적 규정 ·····························································································334
(3) 현행법상 필요적 전치주의의 적용을 받는 처분 ····································334
나. 필요적 전치주의가 적용되는 소송 ······························································335
(1) 취소소송과 부작위위법확인소송 ·····························································335
(2) 무효를 선언하는 의미의 취소소송 ·························································335
(3) 제3자의 제소와 행정심판 전치주의 ·······················································335
(4) 재결이나 재결에 따른 처분 ····································································336
3. 내용 ····················································································································336
가. 소송요건 ········································································································336
나. 적법한 행정심판 청구일 것 ·········································································337
다. 2단계 이상의 행정심판절차가 있는 경우 ···················································338
라. 심판청구와 행정소송의 관련성 ····································································339
(1) 인적 관련 ·································································································339
(2) 물적 관련 ·································································································339
(3) 주장의 공통 여부 ····················································································340
4. 필요적 전치주의의 완화 ···················································································341
가. 행정심판 재결을 기다릴 필요가 없는 경우(행정소송법 18조 2항) ··········341
(1) 행정심판을 청구한 후 60일을 경과한 때(1호) ······································341
(2) 처분의 집행 또는 절차의 속행으로 생길 중대한 손해를
예방하여야 할 긴급한 필요가 있는 때(2호) ··········································342
(3) 법령의 규정에 의한 행정심판기관이 의결 또는
재결을 하지 못할 사유가 있는 때(3호) ·················································342
(4) 그 밖의 정당한 사유가 있는 때(4호) ·····················································343
나. 행정심판을 제기할 필요가 없는 경우(행정소송법 18조 3항) ···················343
(1) 동종 사건에 대하여 이미 행정심판의 기각재결이 있은 때(1호) ··········343
(2) 서로 내용상 관련되는 처분 또는 같은 목적을 위하여
단계적으로 진행되는 처분 중 어느 하나가
이미 행정심판의 재결을 거친 때(2호) ···················································344
(3) 행정청이 사실심의 변론종결 후 소송의 대상인 처분을 변경하여
당해 변경된 처분에 관하여 소를 제기하는 때(3호) ·····························347
(4) 처분청이 행정심판을 거칠 필요가 없다고 잘못 알린 때(4호) ·············347
5. 대표적인 필요적 특별 전치절차 ·······································································348
가. 조세소송의 전치절차 ····················································································349
(1) 국세기본법, 관세법, 지방세기본법상의 필요적 특별 전치절차 ············349
(2) 적용대상 ···································································································350
(3) 전치절차 개관 ··························································································351
(4) 조세소송에서 전치주의의 완화 ·······························································355
나. 공무원 징계처분에 대한 전치절차 ······························································363
(1) 일반공무원 ·······························································································363
(2) 교원인 공무원(국ㆍ공립학교 교원) ·························································363
다. 노동위원회의 결정에 대한 행정심판 ···························································364
라. 해양수산부장관의 시정조치명령 등에 대한 행정심판 ································364
색인 ·························································································································· 365
제6장 제소기간
제1절 개설 ··················································································································· 3
제2절 제소기간의 제한이 있는 소송 ·········································································· 3
제3절 취소소송의 제소기간 ························································································ 4
1. 개설 ························································································································4
2. 행정심판 청구를 하지 않은 경우 ·········································································5
가. 제소기간 ············································································································5
나. 처분등이 있음을 안 날부터 90일 ····································································5
다. 처분이 있은 날부터 1년 ··················································································9
3. 행정심판 청구를 한 경우 ····················································································15
가. 제소기간 ··········································································································15
나. ‘재결서의 정본을 송달받은 날’ 등의 의미 ···················································16
다. 적법한 행정심판 청구 ····················································································17
4. 제소기간과 관련된 특수한 문제 ·········································································23
가. 소 제기 전 처분의 변경과 제소기간 ·····························································23
나. 소의 변경(소송 계속 중 처분의 변경으로 인한 경우 포함)과 제소기간 ·····25
제4절 특별법상의 제소기간 ······················································································ 28
1. 조세소송 ···············································································································28
2. 토지수용위원회의 수용ㆍ사용재결에 대한 소 ····················································30
3. 중앙노동위원회의 처분 및 재심판정에 대한 소 ················································30
4. 교원에 대한 불이익처분에 관한 소 ····································································30
5. 해난심판재결에 대한 소 ······················································································30
제7장 접수 후 절차
제1절 전산입력 및 기록의 편성 ················································································ 33
1. 장부와 재판사무시스템 ························································································33
2. 기록의 편성 ·········································································································34
제2절 접수사무 ········································································································· 34
1. 개설 ······················································································································34
2. 사건번호와 사건명의 부여 ··················································································36
가. 사건번호 ··········································································································36
나. 사건명 ·············································································································38
3. 행정 접수서류를 각종 부책에 등재할 기준 ·······················································38
제8장 소 제기의 방식
제1절 총설 ················································································································· 43
제2절 소장의 필요적 기재사항 ················································································ 43
1. 당사자 ··················································································································43
가. 처분행정청이 피고인 경우의 일반적 표시방법 ·············································44
나. 보통지방행정기관의 경우 ···············································································44
다. 특별지방행정기관의 경우 ···············································································44
라. 공ㆍ사법인이 처분청인 경우 ··········································································44
마. 합의제 기관의 경우 ························································································45
바. 의회의 경우 ····································································································45
사. 소송참가의 경우 ·····························································································46
2. 청구취지 ···············································································································46
3. 청구원인 ···············································································································51
제3절 임의적 기재사항 ····························································································· 51
제4절 첨부서류 ·········································································································· 52
1. 소송목적의 값 산정에 필요한 자료(민사소송 등 인지규칙 8조 1항) ··············52
2. 소송수행권한을 증명하는 서면 ···········································································52
3. 인지 및 송달료의 예납을 증명하는 서류 ···························································52
4. 소장 부본 ·············································································································52
제5절 소송목적의 값 산정의 기준 ··········································································· 53
1. 개설 ······················································································································53
2. 조세 등 납부를 명한 처분의 무효확인ㆍ취소의 소(1호) ···································53
가. 원칙 ·················································································································53
나. 상한제 ·············································································································54
다. 병합한 경우 ····································································································54
3. 체납처분취소의 소(2호) ·······················································································54
4. 금전지급청구의 소(3호) ·······················································································55
5. 제1호 내지 제3호에 규정된 것 이외의 소송(4호) ············································55
6. 병합청구 ···············································································································56
가. 비재산권상 청구의 병합 ·················································································56
나. 재산권상 청구와 비재산권상 청구의 병합 ····················································57
다. 주된 청구와 부대청구 ····················································································58
7. 기타 ······················································································································59
가. 부적법한 소에서의 소가 ·················································································59
나. 인지 첩부ㆍ첨부 및 공탁 제공에 관한 특례법 ···········································59
다. 선정당사자 ······································································································59
라. 500원의 인지를 붙이지 아니하도록 개정된 접수서류 ·································59
마. 위헌법률심판제청신청 ·····················································································60
바. 상소의 경우 ····································································································60
8. 소송유형별 산정례 ·······························································································60
가. 개별공시지가결정처분취소의 소 ····································································60
나. 자동차운전면허취소처분취소의 소 ·································································60
다. 토지수용과 관련된 소송 ·················································································61
라. 주민소송 ··········································································································61
제6절 소장의 접수, 심사, 배당 및 부본의 송달 ····················································· 62
제7절 행정사건의 배당과 관할의 문제 ···································································· 62
제8절 답변서 제출 및 응소안내 ·············································································· 63
제9장 청구병합
제1절 서론 ················································································································· 67
1. 청구병합의 의의 ··································································································67
2. 민사소송법상 청구병합과의 관계 ·······································································67
3. 소송중의 소 병합 ································································································67
제2절 관련청구의 병합 태양 ···················································································· 68
1. 관련청구의 객관적 병합 ······················································································68
2. 관련청구의 주관적 병합 ······················································································68
3. 주관적ㆍ예비적 병합 ···························································································69
제3절 관련청구의 병합 요건 ···················································································· 70
1. 관련청구일 것 ······································································································70
2. 행정소송에 관련청구를 병합할 것 ······································································70
3. 각 청구에 관하여 수소법원에 관할이 있을 것 ··················································71
4. 각 청구가 적법요건을 갖출 것 ···········································································71
5. 피고의 동일성 불필요 ·························································································72
6. 제3자에 의한 추가적 병합은 불가능 ·································································72
제4절 관련청구 소송의 병합절차 ············································································· 72
1. 추가적 병합제기 및 접수 ····················································································72
2. 변론의 병합 ·········································································································73
3. 심리 ······················································································································74
가. 병합요건의 심리 ·····························································································74
나. 실체심리 ··········································································································75
다. 관련 민사소송의 심리절차 ·············································································75
제10장 소 변경
제1절 서론 ················································································································· 79
제2절 소의 종류 변경 ······························································································· 79
1. 의의 ······················································································································79
2. 요건 ······················································································································80
가. 행정소송이 사실심에 계속되고 있고 변론종결 전일 것 ······························80
나. 청구의 기초에 변경이 없을 것 ······································································80
다. 소변경이 상당하다고 인정될 것 ····································································80
라. 신소의 적법성 ·································································································81
3. 사무처리 ···············································································································81
가. 신청과 접수 ····································································································81
나. 의견청취 ··········································································································83
다. 요건심사와 허부결정 ······················································································83
4. 소변경의 효과 ······································································································84
제3절 처분변경으로 인한 소 변경 ··········································································· 86
1. 의의 ······················································································································86
2. 요건 ······················································································································87
가. 사실심 변론종결 전에 처분이 변경될 것 ······················································87
나. 소변경신청 기간 내일 것 ···············································································89
다. 그 밖의 요건 ··································································································90
3. 사무처리 ···············································································································90
가. 신청과 접수 ····································································································90
나. 결정 ·················································································································91
제4절 그 밖의 소변경 ······························································································· 92
1. 민사소송법의 준용에 의한 소변경 ······································································92
가. 문제영역 ··········································································································92
나. 제소기간 예외 ·································································································93
2. 행정소송과 민사소송 간 소변경 ·········································································97
제11장 행정소송에서 가구제
제1절 집행부정지 원칙 ···························································································· 101
제2절 집행정지 ········································································································ 101
1. 의의 ····················································································································101
2. 적용범위 ·············································································································102
가. 적극적 처분에 대한 항고소송 ······································································102
나. 거부처분에 대한 항고소송 ···········································································103
3. 요건 ····················································································································104
가. 적법한 본안소송의 계속(행정소송법 23조 2항) ·········································104
나. 회복하기 어려운 손해를 예방하기 위한 긴급한 필요가 있을 것
(행정소송법 23조 2항) ················································································108
다. 공공복리에 중대한 영향을 미칠 우려가 없을 것(행정소송법 23조 3항) · 110
라. 적극적ㆍ소극적 요건의 비교ㆍ형량과 본안 승소가능성 ·····························111
4. 절차 ····················································································································113
가. 신청과 접수 ··································································································113
나. 관할 ···············································································································114
다. 당사자 ···········································································································115
라. 심리 ···············································································································115
5. 결정 ····················································································································119
가. 각하ㆍ기각 결정 ···························································································119
나. 집행정지결정 ·································································································120
6. 집행정지의 취소 ································································································131
가. 의의 ···············································································································131
나. 요건 ···············································································································131
다. 절차 ···············································································································132
제3절 민사집행법상의 가처분 규정의 준용 여부 ·················································· 136
1. 항고소송과 가처분 ·····························································································136
2. 당사자소송과 가처분 ·························································································136
3. 선거소송과 가처분 ·····························································································137
4. 국가나 지방자치단체를 제3채무자로 하는 민사상 가처분의 공법상 효력 ···· 137
제12장 행정소송의 심리
제1절 심리의 대상과 그 범위 ·················································································· 141
1. 서론 ····················································································································141
2. 심리의 대상(소송물) ··························································································141
가. 항고소송에서 소송물 개념의 기능 ······························································141
나. 취소소송의 소송물 ························································································142
다. 무효등 확인소송의 소송물 ···········································································142
라. 부작위위법확인소송의 소송물 ······································································142
3. 요건심리, 본안심리 ···························································································143
가. 요건심리 ········································································································143
나. 본안심리 ········································································································143
제2절 심리의 진행 ··································································································· 217
1. 서론 ····················································································································217
2. 처분권주의와 그 제한 ·······················································································218
3. 변론주의와 소송요건에 대한 직권조사 ····························································219
가. 변론주의 ········································································································219
나. 소송요건에 대한 직권조사 ···········································································220
4. 주장책임과 직권판단의 범위 ············································································221
제3절 증거조사 ······································································································· 224
1. 자백의 구속력 ····································································································224
2. 증명책임 ·············································································································225
가. 증명책임의 의의 ···························································································225
나. 소송요건사실에 대한 증명책임 ····································································225
다. 본안에 관한 증명책임 ··················································································225
3. 직권증거조사 ······································································································250
가. 의의(변론주의의 보충) ··················································································250
나. 직권증거조사의 범위 ····················································································251
다. 구체적 사례 ··································································································252
라. 민사사건의 병합과 직권탐지주의의 적용 ····················································256
마. 실기한 공격방어방법의 각하 규정의 준용 가부 ·········································257
제4절 증거조사절차 ································································································ 258
1. 총설 ····················································································································258
2. 행정심판기록 제출명령 ·····················································································258
가. 의의 ···············································································································258
나. 신청 ···············································································································258
다. 결정 ···············································································································260
라. 재결청의 제출의무 ························································································262
3. 문서제출명령 ······································································································262
가. 서론 ···············································································································262
나. 문서의 소지자 ·······························································································263
다. 이익문서와 법률관계문서 ·············································································263
라. 인용문서와 정보공개법상 비공개사유와의 관계 등 ····································263
마. 비밀준수의무와의 관계 ················································································264
바. 행정청의 비공개 처리(행정소송규칙 12조) ·················································264
사. 기타 실무상 자주 문제되는 점들 ································································264
아. 정보공개법령상 공개 청구 정보에 대한 비공개 열람심사
(In Camera Proceedings) ········································································265
제5절 민사소송에서 선결문제 심리에 관한 특칙 ·················································· 267
1. 의의 ····················································································································267
2. 적용범위 ·············································································································267
3. 처분 행정청에 대한 통지(행정소송법 11조 2항) ············································268
가. 의의 ···············································································································268
나. 절차 ···············································································································269
다. 불통지의 효과 ·······························································································269
4. 심리절차 ·············································································································269
가. 행정청의 소송참가(행정소송법 11조 1항, 17조) ·······································269
나. 행정심판기록의 제출명령(행정소송법 11조 1항, 25조) ····························270
다. 직권심리(행정소송법 11조 1항, 26조) ·······················································270
5. 재판 ····················································································································270
가. 소송비용재판의 효력(행정소송법 11조 1항, 33조) ···································270
나. 가처분의 허부 ·······························································································270
다. 선결문제에 관한 판단의 효력 ······································································271
6. 형사사건의 선결문제와의 차이 ·········································································271
제6절 법원의 명령규칙 위헌ㆍ위법심사 ································································· 272
1. 개설 ····················································································································272
2. 명령ㆍ규칙심사권 행사의 주체 ·········································································274
3. 명령ㆍ규칙심사의 대상 ······················································································274
가. 명령ㆍ규칙의 의미 ························································································274
나. 긴급조치와 긴급명령의 경우 ·······································································275
다. 법령보충적 행정규칙과 행정규칙인 고시규정의 사법심사 ·························276
4. 대법원에서의 명령ㆍ규칙심사 심리절차 ···························································277
5. 명령ㆍ규칙심사의 기준 내지 척도 ····································································277
가. 의의 ···············································································································277
나. 내용적 위헌성 심사를 한 사례들 ································································278
다. 위임범위 일탈 관련 판단방식 ······································································278
라. 의회유보원칙과 위임범위 일탈 심사 ·························································279
마. 구체적 위임범위의 확정 ···············································································281
바. 명령ㆍ규칙심사의 판단순서 ········································································281
사. 위임 근거 유무의 판단시점 ·········································································281
6. 명령ㆍ규칙심사의 방식과 효과 ·········································································282
가. 법원에 의해 위헌ㆍ위법임이 선언된 명령ㆍ규칙의 효력과 운명 ··············282
나. 하급심 판결서 기재 실무례 ·········································································283
다. 하급심의 명령ㆍ규칙심사 최근 사례 예시 ··················································285
7. 위헌ㆍ위법인 명령ㆍ규칙을 적용한 처분의 효력(당연무효 여부) 및
그로 인한 파생상황 ···························································································286
가. 대법원에 의해 최종적으로 위헌ㆍ위법성이 확인되기 전의 경우 ··············286
나. 대법원에 의해 최종적으로 위헌ㆍ위법성이 확인된 이후에도
해당 규정을 적용한 처분의 경우 ······························································286
다. 대법원 판결 이후에도 판결취지에 반하여
위헌ㆍ위법인 조항을 적용한 행정청의 조치가 불법행위가 되는지 여부 287
8. 법원이 명령ㆍ규칙을 위헌ㆍ위법으로 판단한 경우의 사후적 처리절차 ·········287
9. 행정입법(법규명령)부작위에 대한 법원의 규범통제 ········································288
가. 개념의 정리 ··································································································288
나. 부진정 행정입법부작위에 대한 규범통제의 방식 ·······································289
제13장 행정소송의 종료
제1절 소송의 종료사유 ··························································································· 295
1. 소장, 항소장, 상고장 각하명령 ········································································295
2. 당사자 행위로 인한 종료 ··················································································295
3. 당사자의 사망 등 ······························································································296
4. 화해 ····················································································································297
가. 항고소송 ········································································································297
나. 당사자소송 ····································································································298
다. 민중소송과 기관소송 ····················································································298
5. 청구의 포기ㆍ인낙 ·····························································································298
6. 실무상 조정권고 ································································································299
가. 의의 ···············································································································299
나. 절차 ···············································································································299
다. 조정문안 예시 ·······························································································300
라. 조정권고에 따라 변경처분이 되었음에도
원고가 소를 취하하지 않는 경우의 처리 ··················································303
제2절 행정소송의 판결 ··························································································· 303
1. 종류 ····················································································································303
가. 중간판결ㆍ종국판결 ······················································································303
나. 전부판결ㆍ일부판결 ······················································································303
다. 소송판결ㆍ본안판결 ······················································································304
2. 판결의 효력 ·······································································································315
가. 기속력 ···········································································································315
나. 형성력 ···········································································································319
다. 기판력 ···········································································································321
3. 판결의 선고 ·······································································································324
가. 절차 ···············································································································324
나. 위헌ㆍ위법판결의 통보 및 공고 ··································································324
4. 종국판결의 부수적 재판 ···················································································325
가. 가집행선고 ····································································································325
나. 소송비용 재판 ·······························································································326
제14장 행정소송의 불복절차
제1절 항소, 상고 ····································································································· 331
1. 개설 ····················································································································331
2. 행정소송 항소심의 특수한 절차 ·······································································331
가. 청구취지 및 항소취지의 변경 ······································································331
나. 항소의 추후보완 ···························································································332
다. 항소 제기 시 항소심의 심판범위 ································································333
라. 항소심에서의 소취하와 항소취하 ································································334
마. 항소심에서의 피고경정 ················································································335
바. 대법원의 파기환송 시 항소심의 심판범위 ··················································336
제2절 항고, 재항고 ································································································· 336
제3절 재심 ·············································································································· 336
1. 민사소송법에 의한 재심 ···················································································336
2. 제3자에 의한 재심청구 ·····················································································337
가. 의의 ···············································································································337
나. 당사자 ···········································································································338
다. 재심사유 ········································································································338
라. 재심제기의 기간 ···························································································339
마. 절차 ···············································································································339
제15장 행정소송의 강제집행
제1절 서론 ··············································································································· 345
제2절 간접강제 ······································································································· 346
1. 의의 ····················································································································346
2. 집행기관 ·············································································································347
3. 집행절차 ·············································································································347
가. 신청 및 접수 ································································································347
나. 심리 ···············································································································347
다. 결정 ···············································································································349
라. 간접강제결정의 변경 ····················································································350
마. 불복절차 ········································································································351
바. 배상금의 추심 ·······························································································351
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