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Subject

Permissible Bounds on the Addition or Change of the Statutory Grounds for Administrative Dispositions
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처분 근거법령 추가?변경의 허용범위 ― 기속규정에서 재량규정으로 추가?변경된 사안을 중심으로 ―

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Type
Academic journal
Author
RHEE EUN-SANG (아주대학교)
Journal
아주대학교 법학연구소 아주법학 아주법학 제14권 제2호 KCI Accredited Journals
Published
2020.1
Pages
3 - 25 (23page)

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Permissible Bounds on the Addition or Change of the Statutory Grounds for Administrative Dispositions
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Abstract· Keywords

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According to the established precedents of the Supreme Court of Korea, the addition or change of reasons for administrative dispositions(hereinafter "dispositions") is permitted as long as the basic facts for dispositions remain within identical boundaries. However, it is possible to criticize that such criteria are not effective for the case of addition or change of only the statutory grounds that does not accompany the change of the facts, since the reasons for dispositions are based on fact elements and legal grounds. In particular, it may raise a practical question whether it is permissible to add or change statutory grounds from non- discretionary regulations to discretionary regulations. Regarding this matter, it is worthwhile to refer to the change or maintenance of the nature of dispositions, which is the standard suggested by German theory and precedents. Nonetheless, considering the purpose of Korean precedents where the addition or change of reasons for dispositions is limited, whether or not to infringe on the plaintiff's right of defense and the necessity of guaranteeing procedural rights in administrative litigations can be eventually the main criteria for the above practical question.

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