JongBo Kim, Legal Effects of Void Administrative Acts, Administrative Law Review, Vol. 62 (2020), pp. 1-25.
<Abstract>
The idea that the invalidity of administrative action will be absolutely invalid is closely linked to the concept of ‘nullity of legal action’ in civil law. However, since the scope of legal action in the civil law is limited to the parties from the beginning, it is relatively less burdensome to judge legal action as null and void. If the legal acts between the parties become invalid, the scope of the invalidity and its ripple effect are strongly limited by the substantive or procedural law. On the other hand, the invalidity of administrative action discussed in public law has a wide spectrum. The target of invalid administrative dispositions can range from one person (e.g. driver's license) to thousands (e.g. city planning). In particular, among administrative dispositions targeting a large number of people, various legal relationships such as civil contracts, other administrative dispositions, and criminal punishment are often followed, so it is difficult to compare the nullity of legal acts in public law with the one under civil law. If the administrative disposition with a wide range of validity is judged null and void, the risk that all subsequent legal relations will theoretically be considered invalid is increased, and the legal instability surrounding it becomes difficult to endure. Therefore, there are not a few practices to treat invalid administrative action as something that is relative, not absolute. There are also a number of legal provisions based on this assumption, such as the suspension of execution and the effect of judgments on third party in the Administrative Litigation Act. Administrative acts are an important component of the system designed and operated by law, so administrative acts should be interpreted as the system itself. There is no doubt that if the administrative action issued by the state or local government infringes the rights of a specific individual or group, the court should declare the invalidity of the administrative action when a suit seeking confirmation of nullity is filed. In other areas, however, interpretations that take for granted that administrative actions with serious and obvious defects are absolutely invalid “in a priori ineffective state” should be restrained. Invalid administrative acts are only relatively invalid. The interpretation that the nullity of an administrative act can always be declared invalid, either in substantive or procedural law, by any court, is only a kind of agenda.
In addition, with regard to administrative acts for which the invalidity has been confirmed by the administrative court, it is difficult to agree that the administrative acts that were operated as a system until the judgment is finalized, are determined to be absolutely invalid. In this case, the effect of administrative action declared by the court as invalid shall still be considered to be relatively valid in the area irrelevant to the remedy of the rights of the people, and shall be considered that it is only effective to the extent necessary to achieve the purpose of the lawsuit, the remedy of rights. The initial purpose of the suit seeking confirmation of nullity might be designed as a supplemental appeal lawsuit as an aid to the revocation suit. However, nearly 40 years have passed since the current Administrative Litigation Act was enacted and applied. Meanwhile, regarding the invalidity of administrative acts, various practices and cases have been accumulated by the courts, the executives, and the parties who continue to participate in the legal relations in public law. According to the current sense of practice, it is a way excessive interpretation that administrative acts declared invalid are considered null and void at any time for everyone nationwide. Now is the time to deviate from the view that the nullity of administrative action is absolute, and to reasonably interpret it as a relative one to the extent necessary for the remedy of the parties.
<Keyword>
Nullity(Invalidity), Administrative Action, Relative Nullity(Invalidity), Absolute Nullity(Invalidity), Suit Seeking Confirmation of Nullity, Prior Question, effect of judgments on third party, Interests in Litigation, Judgment Under Special Circumstances
JongBo Kim, Legal Effects of Void Administrative Acts, Administrative Law Review, Vol. 62 (2020), pp. 1-25.
<Abstract>
The idea that the invalidity of administrative action will be absolutely invalid is closely linked to the concept of ‘nullity of legal action’ in civil law. However, since the scope of legal action in the civil law is limited to the parties from the beginning, it is relatively less burdensome to judge legal action as null and void. If the legal acts between the parties become invalid, the scope of the invalidity and its ripple effect are strongly limited by the substantive or procedural law. On the other hand, the invalidity of administrative action discussed in public law has a wide spectrum. The target of invalid administrative dispositions can range from one person (e.g. driver's license) to thousands (e.g. city planning). In particular, among administrative dispositions targeting a large number of people, various legal relationships such as civil contracts, other administrative dispositions, and criminal punishment are often followed, so it is difficult to compare the nullity of legal acts in public law with the one under civil law. If the administrative disposition with a wide range of validity is judged null and void, the risk that all subsequent legal relations will theoretically be considered invalid is increased, and the legal instability surrounding it becomes difficult to endure. Therefore, there are not a few practices to treat invalid administrative action as something that is relative, not absolute. There are also a number of legal provisions based on this assumption, such as the suspension of execution and the effect of judgments on third party in the Administrative Litigation Act. Administrative acts are an important component of the system designed and operated by law, so administrative acts should be interpreted as the system itself. There is no doubt that if the administrative action issued by the state or local government infringes the rights of a specific individual or group, the court should declare the invalidity of the administrative action when a suit seeking confirmation of nullity is filed. In other areas, however, interpretations that take for granted that administrative actions with serious and obvious defects are absolutely invalid “in a priori ineffective state” should be restrained. Invalid administrative acts are only relatively invalid. The interpretation that the nullity of an administrative act can always be declared invalid, either in substantive or procedural law, by any court, is only a kind of agenda.
In addition, with regard to administrative acts for which the invalidity has been confirmed by the administrative court, it is difficult to agree that the administrative acts that were operated as a system until the judgment is finalized, are determined to be absolutely invalid. In this case, the effect of administrative action declared by the court as invalid shall still be considered to be relatively valid in the area irrelevant to the remedy of the rights of the people, and shall be considered that it is only effective to the extent necessary to achieve the purpose of the lawsuit, the remedy of rights. The initial purpose of the suit seeking confirmation of nullity might be designed as a supplemental appeal lawsuit as an aid to the revocation suit. However, nearly 40 years have passed since the current Administrative Litigation Act was enacted and applied. Meanwhile, regarding the invalidity of administrative acts, various practices and cases have been accumulated by the courts, the executives, and the parties who continue to participate in the legal relations in public law. According to the current sense of practice, it is a way excessive interpretation that administrative acts declared invalid are considered null and void at any time for everyone nationwide. Now is the time to deviate from the view that the nullity of administrative action is absolute, and to reasonably interpret it as a relative one to the extent necessary for the remedy of the parties.
<Keyword>
Nullity(Invalidity), Administrative Action, Relative Nullity(Invalidity), Absolute Nullity(Invalidity), Suit Seeking Confirmation of Nullity, Prior Question, effect of judgments on third party, Interests in Litigation, Judgment Under Special Circumstances