상품상세정보

목 차

1권

제1장 서론
제1절 행정소송 ············································································································ 3
1. 의의 ························································································································3
2. 성질 ························································································································3
3. 기능 ························································································································4
제2절 행정소송과 민사소송의 관계 ··········································································· 4
1. 행정사건과 민사사건의 구분 ·················································································4
2. 민사소송 절차 등의 준용 ······················································································5
제3절 행정소송의 종류와 각 소송 상호 간의 관계 ·················································· 6
1. 종류 ························································································································6
가. 항고소송 ············································································································7
(1) 취소소송 ·······································································································7
(2) 무효등 확인소송 ··························································································8
(3) 부작위위법확인소송 ·····················································································9
(4) 법정 외 항고소송(무명항고소송)의 허용 여부 ·········································10
나. 당사자소송 ······································································································12
(1) 의의 등 ······································································································12
(2) 종류 ············································································································12
다. 민중소송 ··········································································································14
(1) 의의 등 ······································································································14
(2) 현행법상의 예 ····························································································14
라. 기관소송 ··········································································································25
(1) 의의 등 ······································································································25
(2) 현행법상의 예 ····························································································26

2. 각 소송 상호 간의 관계 ·····················································································29
가. 취소소송과 무효확인소송 간의 관계 ·····························································29
나. 항고소송과 당사자소송 간의 관계 ·································································30
(1) 취소소송과 당사자소송과의 관계 ·····························································30
(2) 무효확인소송과 당사자소송과의 관계 ······················································31
제2장 행정사건의 관할
제1절 행정법원 ·········································································································· 35
1. 일반법원으로서의 행정법원 ················································································35
2. 행정법원 관할의 전속성 여부 ·············································································36
가. 행정사건의 행정법원 전속 ·············································································36
나. 관할의 지정제도 ·····························································································37
다. 행정법원의 민사사건 처리 ·············································································37
제2절 토지관할 ········································································································· 38
1. 항고소송의 토지관할 ···························································································38
가. 보통재판적 ······································································································38
(1) 일반적인 보통재판적 ·················································································38
(2) 중앙행정기관 등의 특례 규정(행정소송법 9조 2항) ·······························38
(3) 행정법원이 설치되지 아니한 지역 ····························································46
나. 특별재판적 ······································································································46
2. 당사자소송의 토지관할 ························································································47
3. 토지관할의 성질 ··································································································47
제3절 사물관할 ········································································································· 48
제4절 심급관할 ········································································································· 48
제5절 민중소송 및 기관소송의 재판관할 ································································ 48

제6절 사건의 이송 ···································································································· 49
1. 이송의 의의 ·········································································································49
2. 이송할 경우 ·········································································································49
가. 관할위반으로 인한 이송 ·················································································49
나. 편의에 의한 이송 ···························································································51
(1) 민사소송법 35조의 준용에 의한 이송 ·····················································51
(2) 관련청구소송의 이송 ·················································································51
3. 이송 절차 ·············································································································54
가. 관할위반을 이유로 한 이송 ···········································································54
나. 편의에 의한 이송 ···························································································55
다. 불복 ·················································································································55
4. 이송의 효과 ·········································································································56
가. 기속력 ·············································································································56
나. 이송 전 소송행위의 효력 ···············································································57
다. 소송기록의 송부 ·····························································································57
라. 기록송부 전의 긴급처분 ·················································································57
마. 이송받은 법원의 처리 ····················································································57
제3장 당사자
제1절 개설 ················································································································· 61
제2절 당사자능력 ······································································································ 61
1. 의의 ······················································································································61
2. 항고소송 ···············································································································62
가. 원고능력 ··········································································································62
나. 피고능력 ··········································································································63
(1) 원칙 ············································································································63
(2) 공공기관의 정보공개에 관한 법률에 따른 피고능력 확대 ······················63

3. 당사자소송 ···········································································································63
4. 민중소송 및 기관소송 ·························································································63
제3절 당사자적격 ····································································································· 64
1. 의의 ······················································································································64
2. 원고적격 ···············································································································65
가. 취소소송 ··········································································································65
(1) 개설 ············································································································65
(2) 원고적격의 요건 ························································································65
(3) 처분의 상대방과 원고적격 ········································································68
(4) 처분의 제3자와 원고적격 ··········································································78
나. 무효등 확인소송 ···························································································113
다. 부작위위법확인소송 ······················································································114
라. 당사자소송 ····································································································114
마. 민중소송 및 기관소송 ··················································································115
3. 협의의 소의 이익 ······························································································115
가. 개설 ···············································································································115
나. 취소소송 ········································································································116
(1) 소의 이익 ·································································································116
(2) 처분의 효력기간 경과 ·············································································120
(3) 선행(종전)처분을 변경ㆍ흡수ㆍ취소하는 후행(후속)처분이 있는 경우 · 125
(4) 집행완료나 처분의 대상인 권리의 존속기간 만료로
원상회복이 불가능하게 된 경우 ·····························································132
(5) 사정변경으로 소송상 목적을 달성할 수 없게 된 경우 ·························137
(6) 사정변경으로 이익침해가 해소된 경우 ··················································143
(7) 특수한 문제 ·····························································································144
다. 무효등 확인소송 ···························································································149
(1) 소의 이익 ·································································································149
(2) 보충성 요건의 부적용 ·············································································150
라. 부작위위법확인소송 ······················································································150

마. 당사자소송 ····································································································152
(1) 소의 이익 ·································································································152
(2) 도시정비사건 ····························································································153
바. 민중소송 및 기관소송 ··················································································156
4. 피고적격 ·············································································································156
가. 항고소송 ········································································································156
(1) 개설 ··········································································································156
(2) 행정청 ······································································································157
(3) 처분등을 행한 행정청 ·············································································164
(4) 특별법에 의한 예외 ·················································································168
(5) 권한의 변경 등과 피고적격 ····································································170
나. 당사자소송 ····································································································171
다. 민중소송 및 기관소송 ··················································································172
제4절 당사자의 변경 ······························································································ 172
1. 개설 ····················································································································172
2. 소송승계 ·············································································································173
가. 민사소송법 준용에 따른 승계(일반승계와 특정승계) ·································173
(1) 개설 ··········································································································173
(2) 일반승계의 경우 ····················································································173
(3) 특정승계의 경우 ······················································································175
나. 권한청 변경에 따른 피고경정 ······································································175
3. 임의적 당사자변경 ·····························································································177
가. 의의 ···············································································································177
나. 원고의 변경 ··································································································179
다. 잘못 지정한 피고의 경정 ·············································································179
(1) 취지 ··········································································································179
(2) 요건 ··········································································································180
(3) 사무처리 ···································································································181
(4) 효과 ··········································································································184

라. 소의 변경에 수반되는 피고경정 ··································································185
마. 필수적 공동소송에서 누락된 당사자의 추가 ··············································186
바. 관련청구소송을 병합하는 경우 ····································································186
제5절 소송참가 ······································································································· 186
1. 의의 ····················································································································186
2. 소송참가의 형태 ································································································187
가. 행정소송법 16조에 따른 제3자의 소송참가 ···············································187
(1) 의의 및 취지 ···························································································187
(2) 요건 ··········································································································188
(3) 절차 ··········································································································189
(4) 참가인의 지위 ··························································································195
나. 행정소송법 17조에 따른 행정청의 소송참가 ·············································196
(1) 의의 및 취지 ···························································································196
(2) 요건 ··········································································································197
(3) 사무처리 ···································································································198
(4) 참가인의 지위 ··························································································198
다. 민사소송법에 의한 소송참가 ·······································································199
(1) 보조참가의 허용 여부 ·············································································199
(2) 행정청의 보조참가 ···················································································200
(3) 보조참가 이외 다른 참가의 허용성 ·······················································200
제6절 소송상의 대리인 ··························································································· 201
1. 원칙 ····················································································································201
2. 지정대리인(소송수행자) ·····················································································202
가. 지정할 수 있는 소송의 범위 ·······································································202
(1) 국가가 당사자인 사건과 항고소송 사건 ················································202
(2) 지방자치단체가 당사자인 당사자소송 ····················································202
나. 지정과 감독 ··································································································202
(1) 지정(법무부장관과 행정청의 장) ····························································202

(2) 감독 ··········································································································203
(3) 법무부장관의 권한 위임 ··········································································203
(4) 지정ㆍ해임의 방법 ···················································································204
다. 소송수행자의 권한 ························································································204
라. 법원 소관 사무 소송수행자의 보고의무 ·····················································205
마. 법무부장관의 의견 제출 ···············································································205
제4장 행정소송의 대상
제1절 항고소송의 대상 ··························································································· 209
1. 개설 ····················································································································209
가. 규범의 연혁 및 내용 ····················································································209
나. 소송요건 ········································································································210
2. 처분 ····················································································································210
가. 개념 ···············································································································210
나. 처분의 범위 ··································································································212
(1) 행정청의 행위 ··························································································212
(2) 공권력적 행위 ··························································································213
(3) 구체적 집행행위 ······················································································217
(4) 국민의 권리ㆍ의무에 직접 영향이 있는 행위 ········································219
(5) 행정처분으로서의 외형을 갖춘 행위 ······················································228
(6) 행정소송 이외의 불복절차가 따로 마련되어 있지 않을 것 ··················229
다. 처분에 관한 기타 쟁점 ················································································230
(1) 통치행위 ···································································································230
(2) 특별권력관계 내부의 행위 ······································································232
(3) 재량행위 ···································································································232
(4) 거부처분 ···································································································235
(5) 권력적 사실행위 ······················································································240
(6) 부관(附款) ·································································································241

(7) 반복된 행위 ·····························································································244
(8) 인허가의제 ·······························································································245
(9) 과징금 ······································································································248
(10) 행정상 강제 ···························································································251
(11) 신고수리행위 ·························································································263
(12) 신고납부행위(이른바 ‘확인적 부과처분’) ·············································266
(13) 경정처분 ································································································267
3. 행정심판재결 ······································································································273
가. 개설 ···············································································································273
나. 원처분주의와 재결주의 ················································································273
다. 관련청구소송의 병합 ····················································································274
라. 재결 자체에 고유한 위법 ·············································································274
(1) 의의 ··········································································································274
(2) 각하ㆍ기각재결 ························································································275
(3) 인용재결 ···································································································275
(4) 일부인용재결과 수정재결 ········································································277
마. 행정소송법 19조 단서를 위반한 소송의 처리 ············································278
바. 원처분주의에 대한 예외 ···············································································278
(1) 개설 ··········································································································278
(2) 재결주의가 채택되어 있는 예 ·································································279
4. 부작위위법확인소송의 대상 ··············································································281
가. 개설 ···············································································································281
나. 요건 ···············································································································282
(1) 신청의 존재 ·····························································································282
(2) 법규상ㆍ조리상 신청권이 있는 자의 신청 ·············································283
(3) 행정청에 대한 ‘처분등’의 신청 ······························································284
(4) 상당한 기간 ·····························································································285
(5) 처분의 부존재 ··························································································286

제2절 당사자소송의 대상 ······················································································· 287
1. 개설 ····················································································································287
가. 독자적 지위로서의 당사자소송 ····································································287
나. 공법상 계약에 관한 일반규정 신설 ·····························································288
다. 행정소송규칙에서 예시한 당사자소송의 대상 ·············································289
2. 형식적 당사자소송의 유형 ················································································290
가. 인정 필요성 ··································································································290
나. 개별 법률에서 인정되는 형식적 당사자소송의 유형 ··································290
3. 항고소송 대상과의 구분 ···················································································291
가. 구별기준 ········································································································291
나. 판례의 태도 ··································································································293
(1) 각종 사회보장 급부청구 ··········································································293
(2) 손실보상금 청구 ······················································································295
(3) 공법상 법률관계의 단절에 관한 소송 ····················································298
4. 민사소송 대상과의 구분 ···················································································301
가. 구별 실익과 구별 기준 ················································································301
(1) 구별 실익 ·································································································301
(2) 구별 기준 ·································································································302
나. 판례의 태도 ··································································································302
(1) 공법상 신분ㆍ지위 확인소송(민사소송과의 비교) ··································302
(2) 처분등으로 형성된 법률관계를 다투는 소송 ·········································303
(3) 공법상의 부당이득금반환 청구소송 및 국가배상청구소송 ····················304
(4) 공법상 계약에 관한 소송 ········································································305
(5) 도시 및 주거환경정비법 관련 소송 ·······················································307
(6) 행정주체 상호 간의 비용부담청구 등 ····················································313
제3절 민중소송과 기관소송의 대상 ········································································ 313
1. 민중소송의 대상 ································································································313
가. 주민소송 ········································································································313

(1) 개설 ··········································································································313
(2) 공금의 지출에 관한 사항 ········································································315
(3) 재산의 취득, 관리, 처분행위 ··································································318
(4) 계약의 체결ㆍ이행에 관한 사항 ·····························································320
(5) 공금의 부과ㆍ징수의 해태 ······································································321
(6) 감사청구 대상과 주민소송 대상과의 관련성 ·········································322
(7) 선행행위의 위법성 승계 문제 ·································································323
(8) 주민소송에서의 처분성 ···········································································325
나. 국민투표무효소송, 선거무효소송, 당선무효소송 ·········································326
(1) 국민투표무효소송 ····················································································326
(2) 선거무효소송 ····························································································326
(3) 당선무효소송 ····························································································327
2. 기관소송의 대상 ································································································328
가. 지방의회 의결무효소송 ················································································328
나. 감독처분에 대한 이의소송 ···········································································328
제5장 행정소송과 행정심판의 관계
제1절 입법례 ············································································································ 331
제2절 임의적 전치주의(원칙) ··················································································· 331
1. 개념 ····················································································································331
2. 임의적 전치주의에서의 행정심판의 실익 ·························································332
제3절 필요적 전치주의(예외) ·················································································· 333
1. 취지 ····················································································································333
2. 적용 범위 ···········································································································333
가. 필요적 전치를 요하는 처분 ·········································································333
(1) ‘법률’의 근거 ···························································································333
(2) 명시적 규정 ·····························································································334

(3) 현행법상 필요적 전치주의의 적용을 받는 처분 ····································334
나. 필요적 전치주의가 적용되는 소송 ······························································335
(1) 취소소송과 부작위위법확인소송 ·····························································335
(2) 무효를 선언하는 의미의 취소소송 ·························································335
(3) 제3자의 제소와 행정심판 전치주의 ·······················································335
(4) 재결이나 재결에 따른 처분 ····································································336
3. 내용 ····················································································································336
가. 소송요건 ········································································································336
나. 적법한 행정심판 청구일 것 ·········································································337
다. 2단계 이상의 행정심판절차가 있는 경우 ···················································338
라. 심판청구와 행정소송의 관련성 ····································································339
(1) 인적 관련 ·································································································339
(2) 물적 관련 ·································································································339
(3) 주장의 공통 여부 ····················································································340
4. 필요적 전치주의의 완화 ···················································································341
가. 행정심판 재결을 기다릴 필요가 없는 경우(행정소송법 18조 2항) ··········341
(1) 행정심판을 청구한 후 60일을 경과한 때(1호) ······································341
(2) 처분의 집행 또는 절차의 속행으로 생길 중대한 손해를
예방하여야 할 긴급한 필요가 있는 때(2호) ··········································342
(3) 법령의 규정에 의한 행정심판기관이 의결 또는
재결을 하지 못할 사유가 있는 때(3호) ·················································342
(4) 그 밖의 정당한 사유가 있는 때(4호) ·····················································343
나. 행정심판을 제기할 필요가 없는 경우(행정소송법 18조 3항) ···················343
(1) 동종 사건에 대하여 이미 행정심판의 기각재결이 있은 때(1호) ··········343
(2) 서로 내용상 관련되는 처분 또는 같은 목적을 위하여
단계적으로 진행되는 처분 중 어느 하나가
이미 행정심판의 재결을 거친 때(2호) ···················································344
(3) 행정청이 사실심의 변론종결 후 소송의 대상인 처분을 변경하여
당해 변경된 처분에 관하여 소를 제기하는 때(3호) ·····························347

(4) 처분청이 행정심판을 거칠 필요가 없다고 잘못 알린 때(4호) ·············347
5. 대표적인 필요적 특별 전치절차 ·······································································348
가. 조세소송의 전치절차 ····················································································349
(1) 국세기본법, 관세법, 지방세기본법상의 필요적 특별 전치절차 ············349
(2) 적용대상 ···································································································350
(3) 전치절차 개관 ··························································································351
(4) 조세소송에서 전치주의의 완화 ·······························································355
나. 공무원 징계처분에 대한 전치절차 ······························································363
(1) 일반공무원 ·······························································································363
(2) 교원인 공무원(국ㆍ공립학교 교원) ·························································363
다. 노동위원회의 결정에 대한 행정심판 ···························································364
라. 해양수산부장관의 시정조치명령 등에 대한 행정심판 ································364
색인 ·························································································································· 365

제6장 제소기간
제1절 개설 ··················································································································· 3
제2절 제소기간의 제한이 있는 소송 ·········································································· 3
제3절 취소소송의 제소기간 ························································································ 4
1. 개설 ························································································································4
2. 행정심판 청구를 하지 않은 경우 ·········································································5
가. 제소기간 ············································································································5
나. 처분등이 있음을 안 날부터 90일 ····································································5
다. 처분이 있은 날부터 1년 ··················································································9
3. 행정심판 청구를 한 경우 ····················································································15
가. 제소기간 ··········································································································15
나. ‘재결서의 정본을 송달받은 날’ 등의 의미 ···················································16
다. 적법한 행정심판 청구 ····················································································17
4. 제소기간과 관련된 특수한 문제 ·········································································23
가. 소 제기 전 처분의 변경과 제소기간 ·····························································23
나. 소의 변경(소송 계속 중 처분의 변경으로 인한 경우 포함)과 제소기간 ·····25
제4절 특별법상의 제소기간 ······················································································ 28
1. 조세소송 ···············································································································28
2. 토지수용위원회의 수용ㆍ사용재결에 대한 소 ····················································30
3. 중앙노동위원회의 처분 및 재심판정에 대한 소 ················································30
4. 교원에 대한 불이익처분에 관한 소 ····································································30
5. 해난심판재결에 대한 소 ······················································································30

제7장 접수 후 절차
제1절 전산입력 및 기록의 편성 ················································································ 33
1. 장부와 재판사무시스템 ························································································33
2. 기록의 편성 ·········································································································34
제2절 접수사무 ········································································································· 34
1. 개설 ······················································································································34
2. 사건번호와 사건명의 부여 ··················································································36
가. 사건번호 ··········································································································36
나. 사건명 ·············································································································38
3. 행정 접수서류를 각종 부책에 등재할 기준 ·······················································38
제8장 소 제기의 방식
제1절 총설 ················································································································· 43
제2절 소장의 필요적 기재사항 ················································································ 43
1. 당사자 ··················································································································43
가. 처분행정청이 피고인 경우의 일반적 표시방법 ·············································44
나. 보통지방행정기관의 경우 ···············································································44
다. 특별지방행정기관의 경우 ···············································································44
라. 공ㆍ사법인이 처분청인 경우 ··········································································44
마. 합의제 기관의 경우 ························································································45
바. 의회의 경우 ····································································································45
사. 소송참가의 경우 ·····························································································46
2. 청구취지 ···············································································································46
3. 청구원인 ···············································································································51
제3절 임의적 기재사항 ····························································································· 51

제4절 첨부서류 ·········································································································· 52
1. 소송목적의 값 산정에 필요한 자료(민사소송 등 인지규칙 8조 1항) ··············52
2. 소송수행권한을 증명하는 서면 ···········································································52
3. 인지 및 송달료의 예납을 증명하는 서류 ···························································52
4. 소장 부본 ·············································································································52
제5절 소송목적의 값 산정의 기준 ··········································································· 53
1. 개설 ······················································································································53
2. 조세 등 납부를 명한 처분의 무효확인ㆍ취소의 소(1호) ···································53
가. 원칙 ·················································································································53
나. 상한제 ·············································································································54
다. 병합한 경우 ····································································································54
3. 체납처분취소의 소(2호) ·······················································································54
4. 금전지급청구의 소(3호) ·······················································································55
5. 제1호 내지 제3호에 규정된 것 이외의 소송(4호) ············································55
6. 병합청구 ···············································································································56
가. 비재산권상 청구의 병합 ·················································································56
나. 재산권상 청구와 비재산권상 청구의 병합 ····················································57
다. 주된 청구와 부대청구 ····················································································58
7. 기타 ······················································································································59
가. 부적법한 소에서의 소가 ·················································································59
나. 인지 첩부ㆍ첨부 및 공탁 제공에 관한 특례법 ···········································59
다. 선정당사자 ······································································································59
라. 500원의 인지를 붙이지 아니하도록 개정된 접수서류 ·································59
마. 위헌법률심판제청신청 ·····················································································60
바. 상소의 경우 ····································································································60
8. 소송유형별 산정례 ·······························································································60
가. 개별공시지가결정처분취소의 소 ····································································60
나. 자동차운전면허취소처분취소의 소 ·································································60

다. 토지수용과 관련된 소송 ·················································································61
라. 주민소송 ··········································································································61
제6절 소장의 접수, 심사, 배당 및 부본의 송달 ····················································· 62
제7절 행정사건의 배당과 관할의 문제 ···································································· 62
제8절 답변서 제출 및 응소안내 ·············································································· 63
제9장 청구병합
제1절 서론 ················································································································· 67
1. 청구병합의 의의 ··································································································67
2. 민사소송법상 청구병합과의 관계 ·······································································67
3. 소송중의 소 병합 ································································································67
제2절 관련청구의 병합 태양 ···················································································· 68
1. 관련청구의 객관적 병합 ······················································································68
2. 관련청구의 주관적 병합 ······················································································68
3. 주관적ㆍ예비적 병합 ···························································································69
제3절 관련청구의 병합 요건 ···················································································· 70
1. 관련청구일 것 ······································································································70
2. 행정소송에 관련청구를 병합할 것 ······································································70
3. 각 청구에 관하여 수소법원에 관할이 있을 것 ··················································71
4. 각 청구가 적법요건을 갖출 것 ···········································································71
5. 피고의 동일성 불필요 ·························································································72
6. 제3자에 의한 추가적 병합은 불가능 ·································································72
제4절 관련청구 소송의 병합절차 ············································································· 72
1. 추가적 병합제기 및 접수 ····················································································72
2. 변론의 병합 ·········································································································73

3. 심리 ······················································································································74
가. 병합요건의 심리 ·····························································································74
나. 실체심리 ··········································································································75
다. 관련 민사소송의 심리절차 ·············································································75
제10장 소 변경
제1절 서론 ················································································································· 79
제2절 소의 종류 변경 ······························································································· 79
1. 의의 ······················································································································79
2. 요건 ······················································································································80
가. 행정소송이 사실심에 계속되고 있고 변론종결 전일 것 ······························80
나. 청구의 기초에 변경이 없을 것 ······································································80
다. 소변경이 상당하다고 인정될 것 ····································································80
라. 신소의 적법성 ·································································································81
3. 사무처리 ···············································································································81
가. 신청과 접수 ····································································································81
나. 의견청취 ··········································································································83
다. 요건심사와 허부결정 ······················································································83
4. 소변경의 효과 ······································································································84
제3절 처분변경으로 인한 소 변경 ··········································································· 86
1. 의의 ······················································································································86
2. 요건 ······················································································································87
가. 사실심 변론종결 전에 처분이 변경될 것 ······················································87
나. 소변경신청 기간 내일 것 ···············································································89
다. 그 밖의 요건 ··································································································90
3. 사무처리 ···············································································································90
가. 신청과 접수 ····································································································90

나. 결정 ·················································································································91
제4절 그 밖의 소변경 ······························································································· 92
1. 민사소송법의 준용에 의한 소변경 ······································································92
가. 문제영역 ··········································································································92
나. 제소기간 예외 ·································································································93
2. 행정소송과 민사소송 간 소변경 ·········································································97
제11장 행정소송에서 가구제
제1절 집행부정지 원칙 ···························································································· 101
제2절 집행정지 ········································································································ 101
1. 의의 ····················································································································101
2. 적용범위 ·············································································································102
가. 적극적 처분에 대한 항고소송 ······································································102
나. 거부처분에 대한 항고소송 ···········································································103
3. 요건 ····················································································································104
가. 적법한 본안소송의 계속(행정소송법 23조 2항) ·········································104
나. 회복하기 어려운 손해를 예방하기 위한 긴급한 필요가 있을 것
(행정소송법 23조 2항) ················································································108
다. 공공복리에 중대한 영향을 미칠 우려가 없을 것(행정소송법 23조 3항) · 110
라. 적극적ㆍ소극적 요건의 비교ㆍ형량과 본안 승소가능성 ·····························111
4. 절차 ····················································································································113
가. 신청과 접수 ··································································································113
나. 관할 ···············································································································114
다. 당사자 ···········································································································115
라. 심리 ···············································································································115
5. 결정 ····················································································································119
가. 각하ㆍ기각 결정 ···························································································119

나. 집행정지결정 ·································································································120
6. 집행정지의 취소 ································································································131
가. 의의 ···············································································································131
나. 요건 ···············································································································131
다. 절차 ···············································································································132
제3절 민사집행법상의 가처분 규정의 준용 여부 ·················································· 136
1. 항고소송과 가처분 ·····························································································136
2. 당사자소송과 가처분 ·························································································136
3. 선거소송과 가처분 ·····························································································137
4. 국가나 지방자치단체를 제3채무자로 하는 민사상 가처분의 공법상 효력 ···· 137
제12장 행정소송의 심리
제1절 심리의 대상과 그 범위 ·················································································· 141
1. 서론 ····················································································································141
2. 심리의 대상(소송물) ··························································································141
가. 항고소송에서 소송물 개념의 기능 ······························································141
나. 취소소송의 소송물 ························································································142
다. 무효등 확인소송의 소송물 ···········································································142
라. 부작위위법확인소송의 소송물 ······································································142
3. 요건심리, 본안심리 ···························································································143
가. 요건심리 ········································································································143
나. 본안심리 ········································································································143
제2절 심리의 진행 ··································································································· 217
1. 서론 ····················································································································217
2. 처분권주의와 그 제한 ·······················································································218
3. 변론주의와 소송요건에 대한 직권조사 ····························································219
가. 변론주의 ········································································································219

나. 소송요건에 대한 직권조사 ···········································································220
4. 주장책임과 직권판단의 범위 ············································································221
제3절 증거조사 ······································································································· 224
1. 자백의 구속력 ····································································································224
2. 증명책임 ·············································································································225
가. 증명책임의 의의 ···························································································225
나. 소송요건사실에 대한 증명책임 ····································································225
다. 본안에 관한 증명책임 ··················································································225
3. 직권증거조사 ······································································································250
가. 의의(변론주의의 보충) ··················································································250
나. 직권증거조사의 범위 ····················································································251
다. 구체적 사례 ··································································································252
라. 민사사건의 병합과 직권탐지주의의 적용 ····················································256
마. 실기한 공격방어방법의 각하 규정의 준용 가부 ·········································257
제4절 증거조사절차 ································································································ 258
1. 총설 ····················································································································258
2. 행정심판기록 제출명령 ·····················································································258
가. 의의 ···············································································································258
나. 신청 ···············································································································258
다. 결정 ···············································································································260
라. 재결청의 제출의무 ························································································262
3. 문서제출명령 ······································································································262
가. 서론 ···············································································································262
나. 문서의 소지자 ·······························································································263
다. 이익문서와 법률관계문서 ·············································································263
라. 인용문서와 정보공개법상 비공개사유와의 관계 등 ····································263
마. 비밀준수의무와의 관계 ················································································264
바. 행정청의 비공개 처리(행정소송규칙 12조) ·················································264

사. 기타 실무상 자주 문제되는 점들 ································································264
아. 정보공개법령상 공개 청구 정보에 대한 비공개 열람심사
(In Camera Proceedings) ········································································265
제5절 민사소송에서 선결문제 심리에 관한 특칙 ·················································· 267
1. 의의 ····················································································································267
2. 적용범위 ·············································································································267
3. 처분 행정청에 대한 통지(행정소송법 11조 2항) ············································268
가. 의의 ···············································································································268
나. 절차 ···············································································································269
다. 불통지의 효과 ·······························································································269
4. 심리절차 ·············································································································269
가. 행정청의 소송참가(행정소송법 11조 1항, 17조) ·······································269
나. 행정심판기록의 제출명령(행정소송법 11조 1항, 25조) ····························270
다. 직권심리(행정소송법 11조 1항, 26조) ·······················································270
5. 재판 ····················································································································270
가. 소송비용재판의 효력(행정소송법 11조 1항, 33조) ···································270
나. 가처분의 허부 ·······························································································270
다. 선결문제에 관한 판단의 효력 ······································································271
6. 형사사건의 선결문제와의 차이 ·········································································271
제6절 법원의 명령규칙 위헌ㆍ위법심사 ································································· 272
1. 개설 ····················································································································272
2. 명령ㆍ규칙심사권 행사의 주체 ·········································································274
3. 명령ㆍ규칙심사의 대상 ······················································································274
가. 명령ㆍ규칙의 의미 ························································································274
나. 긴급조치와 긴급명령의 경우 ·······································································275
다. 법령보충적 행정규칙과 행정규칙인 고시규정의 사법심사 ·························276
4. 대법원에서의 명령ㆍ규칙심사 심리절차 ···························································277
5. 명령ㆍ규칙심사의 기준 내지 척도 ····································································277

가. 의의 ···············································································································277
나. 내용적 위헌성 심사를 한 사례들 ································································278
다. 위임범위 일탈 관련 판단방식 ······································································278
라. 의회유보원칙과 위임범위 일탈 심사 ·························································279
마. 구체적 위임범위의 확정 ···············································································281
바. 명령ㆍ규칙심사의 판단순서 ········································································281
사. 위임 근거 유무의 판단시점 ·········································································281
6. 명령ㆍ규칙심사의 방식과 효과 ·········································································282
가. 법원에 의해 위헌ㆍ위법임이 선언된 명령ㆍ규칙의 효력과 운명 ··············282
나. 하급심 판결서 기재 실무례 ·········································································283
다. 하급심의 명령ㆍ규칙심사 최근 사례 예시 ··················································285
7. 위헌ㆍ위법인 명령ㆍ규칙을 적용한 처분의 효력(당연무효 여부) 및
그로 인한 파생상황 ···························································································286
가. 대법원에 의해 최종적으로 위헌ㆍ위법성이 확인되기 전의 경우 ··············286
나. 대법원에 의해 최종적으로 위헌ㆍ위법성이 확인된 이후에도
해당 규정을 적용한 처분의 경우 ······························································286
다. 대법원 판결 이후에도 판결취지에 반하여
위헌ㆍ위법인 조항을 적용한 행정청의 조치가 불법행위가 되는지 여부 287
8. 법원이 명령ㆍ규칙을 위헌ㆍ위법으로 판단한 경우의 사후적 처리절차 ·········287
9. 행정입법(법규명령)부작위에 대한 법원의 규범통제 ········································288
가. 개념의 정리 ··································································································288
나. 부진정 행정입법부작위에 대한 규범통제의 방식 ·······································289
제13장 행정소송의 종료
제1절 소송의 종료사유 ··························································································· 295
1. 소장, 항소장, 상고장 각하명령 ········································································295
2. 당사자 행위로 인한 종료 ··················································································295
3. 당사자의 사망 등 ······························································································296

4. 화해 ····················································································································297
가. 항고소송 ········································································································297
나. 당사자소송 ····································································································298
다. 민중소송과 기관소송 ····················································································298
5. 청구의 포기ㆍ인낙 ·····························································································298
6. 실무상 조정권고 ································································································299
가. 의의 ···············································································································299
나. 절차 ···············································································································299
다. 조정문안 예시 ·······························································································300
라. 조정권고에 따라 변경처분이 되었음에도
원고가 소를 취하하지 않는 경우의 처리 ··················································303
제2절 행정소송의 판결 ··························································································· 303
1. 종류 ····················································································································303
가. 중간판결ㆍ종국판결 ······················································································303
나. 전부판결ㆍ일부판결 ······················································································303
다. 소송판결ㆍ본안판결 ······················································································304
2. 판결의 효력 ·······································································································315
가. 기속력 ···········································································································315
나. 형성력 ···········································································································319
다. 기판력 ···········································································································321
3. 판결의 선고 ·······································································································324
가. 절차 ···············································································································324
나. 위헌ㆍ위법판결의 통보 및 공고 ··································································324
4. 종국판결의 부수적 재판 ···················································································325
가. 가집행선고 ····································································································325
나. 소송비용 재판 ·······························································································326

제14장 행정소송의 불복절차
제1절 항소, 상고 ····································································································· 331
1. 개설 ····················································································································331
2. 행정소송 항소심의 특수한 절차 ·······································································331
가. 청구취지 및 항소취지의 변경 ······································································331
나. 항소의 추후보완 ···························································································332
다. 항소 제기 시 항소심의 심판범위 ································································333
라. 항소심에서의 소취하와 항소취하 ································································334
마. 항소심에서의 피고경정 ················································································335
바. 대법원의 파기환송 시 항소심의 심판범위 ··················································336
제2절 항고, 재항고 ································································································· 336
제3절 재심 ·············································································································· 336
1. 민사소송법에 의한 재심 ···················································································336
2. 제3자에 의한 재심청구 ·····················································································337
가. 의의 ···············································································································337
나. 당사자 ···········································································································338
다. 재심사유 ········································································································338
라. 재심제기의 기간 ···························································································339
마. 절차 ···············································································································339
제15장 행정소송의 강제집행
제1절 서론 ··············································································································· 345
제2절 간접강제 ······································································································· 346
1. 의의 ····················································································································346
2. 집행기관 ·············································································································347
3. 집행절차 ·············································································································347

가. 신청 및 접수 ································································································347
나. 심리 ···············································································································347
다. 결정 ···············································································································349
라. 간접강제결정의 변경 ····················································································350
마. 불복절차 ········································································································351
바. 배상금의 추심 ·······························································································351

2권

상품결제정보

고액결제의 경우 안전을 위해 카드사에서 확인전화를 드릴 수도 있습니다.

확인과정에서 도난 카드의 사용이나 타인 명의의 주문등 정상적인 주문이 아니라고 판단될 경우 임의로 주문을 보류 또는 취소할 수 있습니다.  

무통장 입금은 상품 구매 대금은 PC뱅킹, 인터넷뱅킹, 텔레뱅킹 혹은 가까운 은행에서 직접 입금하시면 됩니다.  
주문시 입력한 입금자명과 실제입금자의 성명이 반드시 일치하여야 하며, 7일 이내로 입금을 하셔야 하며 입금되지 않은 주문은 자동취소 됩니다.

배송정보

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• 배송 지역 : 전국지역
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• 배송 기간 : 2일 ~ 7일
• 배송 안내 :

  - 산간벽지나 도서지방(제주도)은 별도의 추가금액을 지불하셔야 하는 경우가 있습니다.

  
  - 고객님께서 주문하신 상품은 입금 확인후 배송해 드립니다.

      다만, 상품종류에 따라서 상품의 배송이 다소 지연될 수 있습니다.

  
  -오후 4시 30분까지 주문시까지 당일 배송 원칙으로 하고 있습니다

교환 및 반품정보

교환 및 반품이 가능한 경우
- 도서를 공급 받으신 날로부터 7일이내 가능합니다. 단, 포장을 개봉하였거나 포장이 훼손되어
  상품가치가 상실된 경우에는 교환/반품이 불가능합니다.
- 공급받으신 도서 내용이 표시.광고 내용과 다른 경우에는 공급받은 날로부터 3일이내

  그사실을 알게 된 날로부터 30일이내

교환 및 반품이 불가능한 경우
- 고객님의 책임 있는 사유로 도서가 멸실 또는 훼손된 경우. 단, 상품의 내용을 확인하기 위하여
  포장 등을 훼손한 경우는 제외
- 포장을 개봉하였거나 포장이 훼손되어 상품가치가 상실된 경우
- 고객님의 사용 또는 일부 소비에 의하여 상품의 가치가 현저히 감소한 경우

- 시간의 경과에 의하여 재판매가 곤란할 정도로 도서 가치가 현저히 감소한 경우
- 복제가 가능한 상품등의 포장을 훼손한 경우
  (자세한 내용은 고객만족센터 1:1 E-MAIL상담을 이용해 주시기 바랍니다.)

※ 고객님의 마음이 바뀌어 교환, 반품을 하실 경우 상품반송 비용(5,000원)은 고객님께서 부담하셔야 합니다.

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