KOREAN ADMINISTRATIVE LITIGATION FROM THE VIEWPOINT OF THE RIGHT OF DEMOCRATIC CONTESTATION

초록

This article links elements of the republican theory-based concept of the right of democratic contestation, as articulated by Philip Pettit and Mattias Kumm, with administrative litigation as actually found in the real world. Upon ascertaining central theoretical elements of the applicable concepts from republican theory that are the criteria necessary to implement the right of democratic contestation. Such criteria include (i) procedural and substantive access to courts, (ii) judicial independence, (iii) procedural fairness, and (iv) adequacy of remedies. Then the article explains how such criteria can be utilized to analyze whether the right of democratic contestation is properly implemented in a particular administrative litigation context. After explaining the theoretical bases and practical aspects of each of the four criteria, this article then discusses concrete examples within the administrative litigation system of the Republic of Korea that can be analyzed using the four criteria. While this article identifies strengths and weaknesses in the Korean system, key weaknesses receive particular emphasis. They are areas that likely need to be improved to achieve suitable implementation of the right of democratic contestation. For example, the failure to provide the equivalent of a writ of mandamus in the Korean administrative litigation system limits the ability of the people to achieve practical realization of their rights. Another deficiency is the structural issues within the courts that limit the appearance of judicial independence in the Supreme Court and the Constitutional Court. Other strengths and weaknesses of the Korean administrative litigation system are also highlighted, with some suggestions for improvement and future research included.

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