Choi Joon-kyu, The Infringement of the Right to Participate in the Administrative Procedure and the Damages for Non-pecuniary Loss, The Journal of Comparative Private Law, Vol. 27, No. 2 (2020), pp. 77-120.
<Abstract>
There is a precedent of the Korean High Court which said that, if the government intentionally omitted the related local people’s participation procedure in the administrative decision prescribed by the law while setting up the waste disposal site, such people could claim for non-pecuniary damages based on the infringement of the right to participate in the administrative procedure. However, the author disagrees with such conclusion for the following reasons. First, when the law which stipulates the related parties’ participation right in the administrative procedure is violated, such participation right should be enforced in principle through the administrative litigation. The right to participate in the administrative procedure must be realized in such a way as to guarantee the participation to the right holder, not in the way of monetary compensation. If the administrative court did not cancel the administrative act in question based on the premise that the government would have issued such administrative act anyway, even if the related people had participated in the process of making administrative act, then such court’s decision should be interpreted to include the administrative court’s intention not to recognize the independent value of the right to participate in the administrative procedure. Nevertheless, if the civil court – emphasizing the independent value of the participation right as such - orders the damages for the non-pecuniary loss only based on the infringement of the participation right in the administrative procedure, then there may occur a disharmony between the judgment of the administrative court and that of the civil court. Also, when the procedural defects of the administrative act will make such act not void but just revocable and the statute of limitations on administrative litigation ran out already, plaintiffs can no longer attack the validity of the administrative act. Under such conditions, it is contradictory to the purpose of the statute of limitations, to award damages for non-pecuniary loss only due to the infringement of the right to participate in the administrative procedure. Second, when the government willfully or maliciously omitted the people’s participation procedure in making administrative act, the judiciary should boldly and positively invalidate such administrative act in question. Under such conditions it seems to emphasize the importance of people's participation rights, awarding damages for non-pecuniary loss. But, in fact, it may be an unsuccessful measure, because it leaves the defective administrative act intact, so that people’s participation in the administrative procedure continues being omitted. It is also difficult to expect that awarding damages can make the government voluntarily observe the statutory administrative procedure in the future. Awarding damages for non-pecuniary loss and leaving the defect of omitting administrative procedure uncured may give the government wrong signal that it is ok to proceed with government plans omitting bothersome participation process of the related parties, and to justify its intentional disregard of the law by paying money later. Third, the right to participate in the administrative procedure is a kind of public right, if we pay attention to the independent value of such participation right. It is the state, that is, all of us, not the qualified local people who was harmed by omitting the participation procedure, and undermining the value of participatory democracy. Awarding damages for non-pecuniary loss only due to the infringement of the right to participate in the administrative procedure, is practically to privatize public damages. This means that a government that has committed illegal acts by omitting administrative participation procedures must pay the fines or penalties to the related residents near the waste landfill facility not to the government. However, public loss should be compensated, corrected and prevented not through a method of civil liability for damages, but through administrative litigation, criminal punishment, disciplinary action inside the government, establishment of internal control system of the government, and the check & supervision of civil society and Congress. Therefore, even if the government intentionally infringed the interested parties’ right to participate in the administrative procedure, it is reasonable not to award damages for non-pecuniary loss solely based on the infringement of the participation right in the administrative procedure.
<Keyword>
the Right to Participate in the Administrative Procedure, Damages for Non-pecuniary Loss, Public Loss, the Validity of the Administrative Act Violating Administrative Procedure, the Relationship between Civil Litigation and Administrative Litigation
Choi Joon-kyu, The Infringement of the Right to Participate in the Administrative Procedure and the Damages for Non-pecuniary Loss, The Journal of Comparative Private Law, Vol. 27, No. 2 (2020), pp. 77-120.
<Abstract>
There is a precedent of the Korean High Court which said that, if the government intentionally omitted the related local people’s participation procedure in the administrative decision prescribed by the law while setting up the waste disposal site, such people could claim for non-pecuniary damages based on the infringement of the right to participate in the administrative procedure. However, the author disagrees with such conclusion for the following reasons. First, when the law which stipulates the related parties’ participation right in the administrative procedure is violated, such participation right should be enforced in principle through the administrative litigation. The right to participate in the administrative procedure must be realized in such a way as to guarantee the participation to the right holder, not in the way of monetary compensation. If the administrative court did not cancel the administrative act in question based on the premise that the government would have issued such administrative act anyway, even if the related people had participated in the process of making administrative act, then such court’s decision should be interpreted to include the administrative court’s intention not to recognize the independent value of the right to participate in the administrative procedure. Nevertheless, if the civil court – emphasizing the independent value of the participation right as such - orders the damages for the non-pecuniary loss only based on the infringement of the participation right in the administrative procedure, then there may occur a disharmony between the judgment of the administrative court and that of the civil court. Also, when the procedural defects of the administrative act will make such act not void but just revocable and the statute of limitations on administrative litigation ran out already, plaintiffs can no longer attack the validity of the administrative act. Under such conditions, it is contradictory to the purpose of the statute of limitations, to award damages for non-pecuniary loss only due to the infringement of the right to participate in the administrative procedure. Second, when the government willfully or maliciously omitted the people’s participation procedure in making administrative act, the judiciary should boldly and positively invalidate such administrative act in question. Under such conditions it seems to emphasize the importance of people's participation rights, awarding damages for non-pecuniary loss. But, in fact, it may be an unsuccessful measure, because it leaves the defective administrative act intact, so that people’s participation in the administrative procedure continues being omitted. It is also difficult to expect that awarding damages can make the government voluntarily observe the statutory administrative procedure in the future. Awarding damages for non-pecuniary loss and leaving the defect of omitting administrative procedure uncured may give the government wrong signal that it is ok to proceed with government plans omitting bothersome participation process of the related parties, and to justify its intentional disregard of the law by paying money later. Third, the right to participate in the administrative procedure is a kind of public right, if we pay attention to the independent value of such participation right. It is the state, that is, all of us, not the qualified local people who was harmed by omitting the participation procedure, and undermining the value of participatory democracy. Awarding damages for non-pecuniary loss only due to the infringement of the right to participate in the administrative procedure, is practically to privatize public damages. This means that a government that has committed illegal acts by omitting administrative participation procedures must pay the fines or penalties to the related residents near the waste landfill facility not to the government. However, public loss should be compensated, corrected and prevented not through a method of civil liability for damages, but through administrative litigation, criminal punishment, disciplinary action inside the government, establishment of internal control system of the government, and the check & supervision of civil society and Congress. Therefore, even if the government intentionally infringed the interested parties’ right to participate in the administrative procedure, it is reasonable not to award damages for non-pecuniary loss solely based on the infringement of the participation right in the administrative procedure.
<Keyword>
the Right to Participate in the Administrative Procedure, Damages for Non-pecuniary Loss, Public Loss, the Validity of the Administrative Act Violating Administrative Procedure, the Relationship between Civil Litigation and Administrative Litigation