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 2권 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 (1) 처분등이 있음을 안 날 ················································································5 (2) 앎의 추정 ·····································································································6 (3) 수령거절 ·······································································································6 (4) 대리인이 안 경우 ·························································································7 (5) 처분의 상대방이 아닌 제3자의 경우 ··························································7 (6) 고시ㆍ공고 등에 의하여 효력이 발생하는 처분 ········································7 (7) 기간의 성질 ··································································································9 다. 처분이 있은 날부터 1년 ··················································································9 (1) 처분이 있은 날 ····························································································9 (2) 송달 ············································································································10 (3) 예외 - 정당한 사유가 있는 때 ·································································14 3. 행정심판 청구를 한 경우 ····················································································15 가. 제소기간 ··········································································································15 나. ‘재결서의 정본을 송달받은 날’ 등의 의미 ···················································16 다. 적법한 행정심판 청구 ····················································································17 (1) 행정심판 청구의 형식과 절차 ···································································17 (2) 행정심판 청구기간 ·····················································································18 (3) 특별행정심판 ······························································································19 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 (1) 원칙 ············································································································25 (2) 예외 ············································································································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 (1) 원칙 ············································································································56 (2) 청구의 목적이 1개의 법률관계에 해당하지 않는 경우(본문) ·················56 (3) 청구의 목적이 1개의 법률관계에 해당하는 경우(단서) ··························56 나. 재산권상 청구와 비재산권상 청구의 병합 ····················································57 (1) 합산법칙 ·····································································································57 (2) 흡수법칙 ·····································································································57 다. 주된 청구와 부대청구 ····················································································58 (1) 소가 ············································································································58 (2) 조세 등의 납부를 명한 처분의 무효확인ㆍ취소를 구하는 소 ·················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 (1) ‘처분의 변경’의 의미 ················································································87 (2) 일반 행정처분의 변경처분 ········································································87 (3) 금전 부과처분의 변경처분 ······································································88 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 (1) 종래의 판례 경향: ‘청구취지 정정’으로 포섭 ··········································93 (2) 최근의 판례 경향: 소변경에 대한 제소기간 예외 인정 ··························96 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 (1) 처분등의 존재 ··························································································104 (2) 본안소송이 적법하게 계속되고 있을 것 ················································106 나. 회복하기 어려운 손해를 예방하기 위한 긴급한 필요가 있을 것 (행정소송법 23조 2항) ················································································108 (1) 회복하기 어려운 손해 ·············································································108 (2) 긴급한 필요 ·····························································································110 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 (1) 소명 ··········································································································115 (2) 심문기일의 진행 ······················································································116 (3) 학교폭력예방법상 피해학생측 의견 청취 특례 규정 ·····························118 5. 결정 ····················································································································119 가. 각하ㆍ기각 결정 ···························································································119 나. 집행정지결정 ·································································································120 (1) 내용과 절차 ·····························································································120 (2) 효력 ··········································································································126 (3) 즉시항고 ···································································································130 6. 집행정지의 취소 ································································································131 가. 의의 ···············································································································131 나. 요건 ···············································································································131 다. 절차 ···············································································································132 (1) 신청과 접수 ·····························································································132 (2) 심리, 결정 ································································································133 (3) 즉시항고 ···································································································135 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 (1) 위법판단에 있어 기준이 되는 ‘사실상태’(위법판단의 기준시) ·············144 (2) 위법판단에 있어 ‘적용법령’ ····································································146 (3) 재량행사에 대한 심리 ·············································································156 (4) 취소소송에서 처분사유의 추가ㆍ변경 ····················································169 (5) 처분의 하자 ·····························································································179 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 (1) 일반적 원칙 ·····························································································225 (2) 구체적인 경우 ··························································································226 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 (1) 신청인 ······································································································258 (2) 대상 ··········································································································259 (3) 접수 ··········································································································259 다. 결정 ···············································································································260 (1) 심리 ··········································································································260 (2) 결정 ··········································································································260 (3) 불복 ··········································································································260 라. 재결청의 제출의무 ························································································262 (1) 의의 ··········································································································262 (2) 비밀준수의무 ····························································································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 (1) 행정소송규칙 11조의 내용 ·····································································265 (2) 하급심 실무 운영 방식 ···········································································266 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 (1) 의의 ··········································································································315 (2) 성질 ··········································································································315 (3) 내용 ··········································································································315 (4) 기속력의 범위 ··························································································318 (5) 위반행위의 효력 ······················································································319 나. 형성력 ···········································································································319 (1) 의의 ··········································································································319 (2) 근거 ··········································································································319 (3) 형성력의 범위 ··························································································320 다. 기판력 ···········································································································321 (1) 의의 ··········································································································321 (2) 기판력의 범위 ··························································································321 (3) 기판력의 적용 ··························································································323 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 (1) 소송비용 ···································································································326 (2) 소송비용의 부담 ······················································································327 (3) 소송비용에 관한 재판의 효력 ·································································328 (4) 소송비용의 담보 ······················································································328 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 (1) 항소심에의 이심 ······················································································333 (2) 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 (1) 재심의 소 제기 ························································································339 (2) 심리, 재판 ································································································340 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 (1) 일반적 요건 ·····························································································347 (2) 의무행정청에 대한 심문 ··········································································349 다. 결정 ···············································································································349 라. 간접강제결정의 변경 ····················································································350 마. 불복절차 ········································································································351 바. 배상금의 추심 ·······························································································351 1권 차례 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 나. 당사자소송 ······································································································12 다. 민중소송 ··········································································································14 라. 기관소송 ··········································································································25 2. 각 소송 상호 간의 관계 ·····················································································29 가. 취소소송과 무효확인소송 간의 관계 ·····························································29 나. 항고소송과 당사자소송 간의 관계 ·································································30 제2장 행정사건의 관할 제1절 행정법원 ·········································································································· 35 1. 일반법원으로서의 행정법원 ················································································35 2. 행정법원 관할의 전속성 여부 ·············································································36 가. 행정사건의 행정법원 전속 ·············································································36 1권 차례 ∙ xxix 나. 관할의 지정제도 ·····························································································37 다. 행정법원의 민사사건 처리 ·············································································37 제2절 토지관할 ········································································································· 38 1. 항고소송의 토지관할 ···························································································38 가. 보통재판적 ······································································································38 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 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 xxx ∙ 1권 차례 제3장 당사자 제1절 개설 ················································································································· 61 제2절 당사자능력 ······································································································ 61 1. 의의 ······················································································································61 2. 항고소송 ···············································································································62 가. 원고능력 ··········································································································62 나. 피고능력 ··········································································································63 3. 당사자소송 ···········································································································63 4. 민중소송 및 기관소송 ·························································································63 제3절 당사자적격 ····································································································· 64 1. 의의 ······················································································································64 2. 원고적격 ···············································································································65 가. 취소소송 ··········································································································65 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 다. 무효등 확인소송 ···························································································149 라. 부작위위법확인소송 ······················································································150 마. 당사자소송 ····································································································152 바. 민중소송 및 기관소송 ··················································································156 4. 피고적격 ·············································································································156 가. 항고소송 ········································································································156 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 나. 권한청 변경에 따른 피고경정 ······································································175 3. 임의적 당사자변경 ·····························································································177 가. 의의 ···············································································································177 나. 원고의 변경 ··································································································179 다. 잘못 지정한 피고의 경정 ·············································································179 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 나. 행정소송법 17조에 따른 행정청의 소송참가 ·············································196 다. 민사소송법에 의한 소송참가 ·······································································199 제6절 소송상의 대리인 ··························································································· 201 1. 원칙 ····················································································································201 2. 지정대리인(소송수행자) ·····················································································202 가. 지정할 수 있는 소송의 범위 ·······································································202 나. 지정과 감독 ··································································································202 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 다. 처분에 관한 기타 쟁점 ················································································230 3. 행정심판재결 ······································································································273 가. 개설 ···············································································································273 나. 원처분주의와 재결주의 ················································································273 다. 관련청구소송의 병합 ····················································································274 라. 재결 자체에 고유한 위법 ·············································································274 마. 행정소송법 19조 단서를 위반한 소송의 처리 ············································278 바. 원처분주의에 대한 예외 ···············································································278 4. 부작위위법확인소송의 대상 ··············································································281 가. 개설 ···············································································································281 나. 요건 ···············································································································282 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 1권 차례 ∙ xxxiii 가. 구별기준 ········································································································291 나. 판례의 태도 ··································································································293 4. 민사소송 대상과의 구분 ···················································································301 가. 구별 실익과 구별 기준 ················································································301 나. 판례의 태도 ··································································································302 제3절 민중소송과 기관소송의 대상 ········································································ 313 1. 민중소송의 대상 ································································································313 가. 주민소송 ········································································································313 나. 국민투표무효소송, 선거무효소송, 당선무효소송 ·········································326 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 나. 필요적 전치주의가 적용되는 소송 ······························································335 3. 내용 ····················································································································336 가. 소송요건 ········································································································336 나. 적법한 행정심판 청구일 것 ·········································································337 다. 2단계 이상의 행정심판절차가 있는 경우 ···················································338 라. 심판청구와 행정소송의 관련성 ····································································339 4. 필요적 전치주의의 완화 ···················································································341 가. 행정심판 재결을 기다릴 필요가 없는 경우(행정소송법 18조 2항) ··········341 나. 행정심판을 제기할 필요가 없는 경우(행정소송법 18조 3항) ···················343 5. 대표적인 필요적 특별 전치절차 ·······································································348 가. 조세소송의 전치절차 ····················································································349 나. 공무원 징계처분에 대한 전치절차 ······························································363 다. 노동위원회의 결정에 대한 행정심판 ···························································364 라. 해양수산부장관의 시정조치명령 등에 대한 행정심판 ································364 색인 ·························································································································· 365