Standing to sue in Administrative Litigation and Control Strategy of Administrative State
Authors:   Korean Administrative Law Association, Park Jae-Yoon 
Published: June 2023

With the recent prolonged Covid-19 crisis, the phenomenon of the administrative state, in which state functions are concentrated in the administration in crisis situations, is strengthening. Administrative litigation is the most important means of control over the executive from the perspective of the rule of law. In addition, it is natural that administrative litigation is aimed at relieving the rights of citizens. The question has been whether the two functions will be limited only to the subjective function, especially in appeals suit. This controversy stems from Article 81 of the Constitution. Today's understanding of administrative litigation has a fundamental relationship with how Congress and the judiciary distribute state authority with respect to the administration to effectively exercise national sovereignty.
There has been a continuous confrontation of positions over the interpretation of ‘legal interests’ in Article 12 of Administrative Litigation Act. This is the confrontation between so-called the subjective litigation theory and the objective litigation theory. Until recently, mainstream opinions were based on the Subjective Public Right Theory of Germany.
This theory has an undemocratic origin in its beginning. This still has a problem in that even in a democratized modern state, the administrative state phenomenon still appears according to the actual separation of powers, and the administration that should be controlled determines the scope of the controller. Therefore, the limitations of theory must be overcome by theory.
From this point of view, this study examines the discussions on the revision of Administrative Litigation Act over the past 20 years. Both Supreme Court's amendment and Ministry of Justice's amendment failed to lead to actual legislation and were unsuccessful. However, as a methodological struggle arising from the fundamental origin of Korea's administrative litigation law system, academic meaning can be found in its own way. After Ministry of Justice's proposal for a compromised solution, many scholars now support the view that the law should be revised and interpreted relatively consistently in the direction of expanding standing to sue.
According to a review in this study, it is confirmed that the Supreme Court is gradually moving away from the classical methodology that determines the protection of private interests by the underlying law. This is based on the fact that our legislation takes a typical legislative technology that sets the purpose around the public interest and establishes an administrative agency to establish a basis for public interest obligations and administrative actions. It can be evaluated that precedents have intuitively broken through the limitations of this legislative method in a way that considers factual interests. Here, a typology for deriving a profit situation emerges as an important methodology.
As a strategy to expand standing to sue, I suggested paying attention to eligible interest theory and legality guarantee theory. Furthermore, various strategies of types were reviewed, and a plan to allow class action was suggested. The above discussion is a review of the issue of standing to sue in terms of legal control over administration as a task of administrative litigation and needs to be further emphasized in relation to the recent phenomenon of the administrative state.