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A Study on Administrative Guidances & Ex Facto Post Reliefs

  • Public Land Law Review
  • Abbr : KPLLR
  • 2009, 43(2), pp.681-714
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

LEE SOONJA 1

1고려대학교

Accredited

ABSTRACT

Administrative guidances function as an elastic and flexible administrative means in that they could be carried out with no legal grounds, playing a complementary role in defective legality. On top of that, they have helping functions of preventing conflicts and resistances by seeking a voluntary cooperation from their recipient, providing new knowledge and technologies, and integratively adjusting conflicting stakeholders. On the other hand, they are of non-authoritativeness based on their recipient's voluntary cooperation, which is why it's difficult to admit their mandative enforcements and impossible to accept a claim for compensations in accordance with an administrative litigation since there have been a prior consent from the recipient. These problems make it hard to realize ex facto post reliefs. Comparing cases and theories on administrative guidances and state tort liabilities between Japan and South Korea, this study aims at developing an upgraded theory of state tort liabilities based on the institutional differences between them. The study also addresses the flow of administrative guidances in accordance with the requirements for state tort liability, and the possibility on whether the types of administrative guidances could determine the state tort liabilities. In conclusion, the flow chart of administrative guidances proposed in this study enabled one to have knowledge not only at what stage each requirement for state tort liabilities has to be secured in what form, but also how each type of administrative guidances induce a judgement on voluntariness and causal relationships. In addition to that, it's been found that whether illegality and deliberation or negligence should be considered the same kind of requirement for state tort liabilities or not led to different results on whether the state tort liabilities can be acknowledged or not.

Citation status

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