This study aims at reviewing those problems concerned with the administrative litigation against illegal clauses by comparing and analyzing theories and judicial cases of Germany and Korea to expand the scope of redemption of plaintiff's right.
This study consists of 6 chapters in total.
Chapter 1 sets up the purpose and scope of this research.
Chapter 2 deals with the general theory about clauses such as the concept, function and sort of clauses.
Chapter 3 looks into the allowable range and limit of clauses.
Chapter 4 examines illegal clauses, the criteria of either invalidating or canceling them, and the effect on administrative litigation in the case of its invalidity and cancellation.
Chapter 5 examines whether the administrative litigation can be used to attack the illegal clauses, seeking the measures to expand the scope of redemption of plaintiff's right. In order to do so, this research distinguished the possibility of using the administrative litigation from that of canceling by comparing and analyzing the theories and the judicial cases both in Korea and in Germany.
In the final chapter it summarizes the research outcomes and suggests measures to expand the scope of redemption of plaintiff's right.
In order to expand the scope of redemption of right of the plaintiff subject to illegal clauses, Korea also needs to introduce the litigation of imposing duty to the administration. In addition, the attitude of judicial cases, which now denies the possibility of using the administrative litigation except in the case of the clause with duty, should be changed.
Furthermore, in the case that the clauses are abusive with administrative expediency and add a heavy burden to the other party, the citizen's right might be severely restricted. Thus, the rule of prohibiting unfair connection and the proportional rule must be kept. Lastly, it is necessary to set up the limitation of imposing clauses and to controll the administration according to a positive law and an adjective law.