Chapter 9: Administrative Litigation in Korea: Structures and Roles in Judicial Review
Hee-Jung Lee I. INTRODUCTION The institution of ‘administrative litigation’ of a country reflects the country’s constitutionally defined separation of powers and the checks and balances among the various branches of its government. Thus, an examination of the actual practice of administrative litigation in a country reveals how power is allocated within that country and gives insight into the role of each branch in realizing the rule of law. Further, such an examination can also reveal the status and role of the ‘citizen’ in the political community, both in normative and descriptive dimensions. Through administrative litigation, a citizen can be a defensive claimant for his legal rights and an aggressive participant in legal control of administrative power. Generally, the above issues are crystallized in the legal doctrines of judicial reviewability and scope of review in administrative litigation. Judicial reviewability decisions are based on the following questions: what type of administrative acts will be subject to judicial review?; who is entitled to request judicial review of administrative decisions?; what kind of judicial intervention is allowed? Issues relating to scope of review mainly concern ‘to what extent courts should respect administrative decisions.’Another important issue concerns ‘who is to decide the above issues in concrete cases.’ Though courts will have the final say, Congress also has the power and ability to decide the limit of judicial review if it so chooses. One of the distinctions of practices and theories of administrative litigation in Korea is that much more weight has been given to issues...
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