1권

제1편 행정법통론
제1장 행정법의 관념 ············ 17
제1절 행정법의 의의 17
제1목 행정법이란? ·············································· 17
제2목 행정관념의 성립(권력분립주의) ············· 17
제3목 행정에 관한 법으로서의 행정법 ··········· 19
제4목 공법으로서의 행정법 ······························· 26
제2절 행정법의 성립과 유형 ····································· 33
제1목 개괄(대륙법계와 영미법계) ····················· 33
제2목 대륙법계 ···················································· 33
제3목 영미법계 ···················································· 34
제4목 우리나라 ···················································· 35
제5목 행정법의 특징 ·········································· 35
제3절 행정법에 대한 헌법상의 원리 ······················ 36
제1목 헌법에 대한 행정법학자들의 견해 ······· 36
제2목 헌법과 행정법의 관계 ····························· 36
제3목 헌법상의 기본원리 ··································· 36
제4절 법치주의 ··········· 38
제1목 의 의 ····· 38
제2목 법치주의의 내용 ······································· 38
제2장 행정법의 법원 ············ 43
제1절 법원의 관념 ···· 43
제1목 법원의 의의 ·············································· 43
제2목 법원의 종류 ·············································· 43
제2절 법의 효력 ········ 66
제1목 개 설 ····· 66
제2목 시간적 효력 ·············································· 66
제3목 지역적 효력 ·············································· 70
제4목 대인적 효력 ·············································· 70
제3절 법원의 흠결과 보충 ········································· 71
제1목 개 괄 ····· 71
제2목 공법규정의 유추적용 ······························· 71
제3목 사법 적용의 가능성 ································· 72
제3장 행정상 법률관계 ········ 73
제1절 행정상 법률관계의 관념 ································· 73
제1목 행정상 법률관계의 당사자 ····················· 73
제2목 행정상 법률관계(행정법관계의 종류) ··· 79
제2절 사법 형식의 행정작용 ····································· 81
제1목 개 념 ····· 81
제2목 행정사법작용 ············································· 81
제3목 특별행정법관계 ········································· 82
제3절 행정법관계의 내용 ············································ 87
제1목 의 의 ····· 87
제2목 국가적 공권 ·············································· 88
제3목 개인적 공권 ·············································· 88
제4목 공의무 ··· 97
제4절 행정법관계의 발생?변경?소멸 ················· 97
제1목 개 설 ····· 97
제2목 행정법상 사건 ·········································· 98
제3목 사인의 공법행위 ······································· 107

제2편 행정작용법
제1장 행정입법 ························ 121
제1절 개 설 ················· 121
제1목 행정입법의 의의와 종류 ························· 121
제2목 행정입법의 필요성과 문제점 ················· 122
제2절 법규명령 ··········· 123
제1목 법규명령의 의의 ······································· 123
제2목 법규명령의 종류 ······································· 123
제3목 법규명령의 근거 ······································· 126
제4목 법규명령의 성립요건?효력요건 ··········· 127
제5목 하자있는 법규명령의 효력 ····················· 128
제6목 법규명령의 한계(소의 이유 유무) ········ 129
제7목 법규명령의 통제 ······································· 133
제3절 행정규칙 ··········· 139
제1목 행정규칙의 의의 ······································· 139
제2목 행정규칙의 종류 ······································· 140
제3목 행정규칙의 성질 ······································· 141
제4목 행정규칙 입법형식과 법률사항의 불일치 ················································ 143
제5목 행정규칙의 성립?하자?소멸 ·············· 151
제6목 행정규칙의 통제 ······································· 152
제2장 행정계획 ························ 154
제1목 행정계획의 관념 ······································· 154
제2목 종 류 ····· 154
제3목 행정계획의 법적 성질 ····························· 155
제4목 행정계획의 절차 ······································· 158
제5목 행정계획의 효과 ······································· 159
제6목 행정계획의 통제 ······································· 161
제3장 행정행위 ························ 166
제1절 행정행위의 관념과 종류 ································· 166
제1목 행정행위의 개념 ······································· 166
제2목 행정행위의 특질 ······································· 170
제3목 행정행위의 종류 ······································· 170
제2절 기속행위?재량행위?불확정개념 ··············· 176
제1목 기속행위와 재량행위(효과 측면) ··········· 176
제2목 불확정개념과 판단여지(요건 측면) ······· 185
제3절 행정행위의 내용 ················································ 189
제1항 법률행위적 행정행위 ····························· 189
제1목 명령적 행위 ·············································· 190
1. 개 괄 190
2. 하 명 190
3. 허 가 191
4. 면 제 199
제2목 형성적 행위 ·············································· 200
1. 특허(상대방을 위한 행위) ·················· 200
2. 타자를 위한 행위 ································ 202
제2항 준법률행위적 행정행위 ························· 205
제1목 개 념 ····· 205
제2목 확 인 ····· 205
제3목 공 증 ····· 207
제4목 통 지 ····· 211
제5목 수 리 ····· 214
제4절 행정행위의 적법요건 ······································· 217
제1목 주체요건 ···················································· 217
제2목 내용요건 ···················································· 218
제3목 절차요건 ···················································· 218
제4목 형식요건 ···················································· 218
제5목 표시(송달?통지)요건(외부적 성립요건) ··················································· 218
제5절 행정행위의 효력 ················································ 220
제1목 효력의 개념 ·············································· 220
제2목 내용상 구속력 ·········································· 220
제3목 공정력(예선적 효력) ································ 221
제4목 구성요건적 효력 ······································· 223
제5목 존속력(확정력) ·········································· 225
제6목 강제력 ··· 229
제6절 행정행위의 하자 ················································ 230
제1목 일반론 ··· 230
제2목 행정행위의 무효와 취소의 구별 ··········· 231
제3목 하자의 정도가 취소인 행정행위 ··········· 235
제4목 하자의 정도가 무효인 행정행위 ··········· 237
제5목 행정행위의 하자의 승계 ························· 240
제6목 하자 있는 행정행위의 치유와 전환 ····· 244
제7절 행정행위의 폐지 ················································ 249
제1목 의 의 ····· 249
제2목 직권취소와 쟁송취소 비교 ····················· 249
제3목 행정행위의 직권취소 ······························· 250
제4목 행정행위의 철회 ······································· 253
제8절 행정행위의 실효 ················································ 256
제1목 실효의 의의 ·············································· 256
제2목 구 별 ····· 256
제3목 실효의 사유 ·············································· 256
제4목 실효의 효과 ·············································· 256
제9절 부 관 ················· 257
제1목 부관의 관념 ·············································· 257
제2목 부관의 기능 ·············································· 259
제3목 부관의 종류(조기부유일) ························ 259
제4목 하자 있는 부관에 대한 권리구제 ········· 265
제4장 기타 행정의 행위형식 ················································· 272
제1절 확언과 확약 ···· 272
제1목 의 의 ····· 272
제2목 법적 근거 ·················································· 272
제3목 법적 성질(행정행위성 여부) ····················273
제4목 확언?확약의 요건 ·································· 274
제5목 확언?확약의 효과 ·································· 274
제2절 공법상 계약 ···· 275
제1목 관 념 ····· 275
제2목 법적 근거와 유용성 ································· 277
제3목 종 류 ····· 277
제4목 공법상 계약에서 권리?의무의 성격 ··· 278
제5목 성립 요건 ·················································· 278
제6목 하 자 ····· 278
제7목 계약관계의 변경?실현 ··························· 279
제8목 권리구제 ···················································· 280
제3절 공법상 사실행위(사실행위론 1) ···················· 281
제1목 개 념 ····· 281
제2목 종 류 ····· 281
제3목 법적 근거 ·················································· 281
제4목 한 계 ····· 282
제5목 권리보호 ···················································· 282
제6목 비공식적 행정작용 ··································· 282
제4절 행정지도(사실행위론 2) ··································· 284
제1목 행정지도의 의의 ······································· 284
제2목 기 능 ····· 284
제3목 법적 근거 ·················································· 285
제4목 종류(기능의 차이) ···································· 285
제5목 성 질 ····· 285
제6목 행정지도의 원칙과 방식 ························· 286
제7목 한 계 ····· 286
제8목 권리보호 ···················································· 287
제5절 자동화 행정결정 ················································ 289
제1목 자동화 행정작용의 의의 ························· 289
제2목 자동화 행정작용의 법적 성질 ··············· 289
제3목 자동화 행정결정의 특성 ························· 289
제4목 자동화 행정결정의 하자와 권리구제 ··· 289

제3편 행정의 실효성 확보수단
Intro 행정의 실효성 확보수단 ·············································· 293
제1장 행정상 강제집행 ········ 294
제1절 일반론 ··············· 294
제1목 행정상 강제집행의 관념 ························· 294
제2목 법적 근거 ·················································· 295
제3목 종류(대강이직) ·········································· 295
제2절 대집행 ··············· 295
제1목 관 념 ····· 295
제2목 법적 근거 ·················································· 296
제3목 내 용 ··· 296
제4목 절차(계통실비) ·········································· 300
제5목 권리구제 ···················································· 302
제3절 행정상 강제징수 ················································ 303
제1목 의 의 ····· 303
제2목 법적 근거 ·················································· 303
제3목 절차(독압매청) ·········································· 304
제4목 권리구제 ···················································· 308
제4절 집행벌(이행강제금) ··········································· 309
제1목 관 념 ····· 309
제2목 특 징 ····· 309
제3목 법적 근거 ·················································· 311
제4목 불복이 있는 자 ········································ 311
제5절 직접강제 ··········· 312
제1목 관 념 ····· 312
제2목 법적 근거 ·················································· 312
제3목 대 상 ····· 312
제4목 한 계 ····· 312
제5목 권리구제 ···················································· 313
제2장 행정벌 ···························· 314
제1목 관 념 ····· 314
제2목 특징(다른 벌과의 구별) ·························· 314
제3목 법적 근거 ·················································· 315
제4목 종 류 ····· 316
제3장 즉시강제 ························ 329
제1목 관 념 ····· 329
제2목 근 거 ····· 329
제3목 법적 성질 ·················································· 329
제4목 종 류 ····· 329
제5목 한 계 ····· 330
제6목 권리구제 ···················································· 331
제4장 행정조사 ························ 333
제1목 의의(자료나 정보 확보가 목적) ············ 333
제2목 종 류 ····· 333
제3목 위법한 조사의 효과 ································· 334
제4목 한 계 ····· 334
제5목 권리구제 ···················································· 335
제6목 행정조사기본법 ······································· 336
제5장 새로운 의무이행확보수단 ·········································· 342
제1절 새로운 실효성 확보수단의 등장 배경 ······ 342
제1목 개 설 ····· 342
제2목 새로운 실효성 확보수단의 성격 ··········· 342
제2절 금전상 제재 ···· 342
제1목 과징금과 부과금 ······································· 342
제2목 가산세 ··· 345
제3목 가산금 ··· 346
제3절 제재적 행정처분(관허사업의 제한) ············ 347
제1목 의 의 ····· 347
제2목 법적 근거의 필요 여부 ··························· 347
제3목 종 류 ····· 347
제4절 공급거부 ··········· 348
제1목 의 의 ····· 348
제2목 법적 근거 ·················································· 348
제3목 한 계 ····· 348
제4목 권리구제 ···················································· 349
제5절 공 표 ················· 350
제1목 의 의 ····· 350
제2목 기 능 ····· 350
제3목 법적 성질 ·················································· 350
제4목 법적 근거 ·················································· 350
제5목 한 계 ····· 351
제6목 권리구제 ···················································· 351

● 찾아보기(INDEX) ················ 353

2권

제4편 행정구제법
제1장 사전구제제도 ··············· 15
제1절 청 원 ················· 15
제1목 의 의 ····· 15
제2목 청원사항 ···················································· 15
제3목 청원대상기관 ············································· 16
제4목 청원방법 ···················································· 16
제2절 옴부즈맨 제도 17
제1목 의 의 ····· 17
제2목 특 성 ····· 17
제3목 비 판 ····· 17
제4목 우리나라의 옴부즈맨 제도 ····················· 17
01 의 의 ···················································· 17
02 국민권익위원회(고충민원처리제도) ·· 18
03 시민고충처리위원회 ··························· 20
04 고충민원의 처리 ································· 21
05 감사원 등 ············································ 23
제3절 행정절차법 ······ 24
제1목 행정절차 일반론 ······································· 24
01 관 념 ···················································· 24
02 행정절차법 ·········································· 25
제2목 행정절차의 종류 ······································· 27
01 처분절차 ·············································· 27
02 신고절차 ·············································· 33
03 행정상 입법예고절차 ························· 34
04 행정예고절차 ······································ 35
05 행정지도절차 ······································ 35
06 국민참여의 확대 ································· 35
제3목 행정절차의 기본 요소 ····························· 36
01 절차의 주체 ········································ 36
02 절차의 경과 ········································ 37
제4목 당사자등의 권리 ······································· 39
01 사전통지를 받을 권리(처분의 사전통지제도) ······································ 39
02 의견제출권(약식청문) ························· 39
03 청문권(청문제도) ································ 40
04 공청회참가(공청회제도) ····················· 45
제5목 행정절차의 하자 ······································· 48
01 의 의 ···················································· 48
02 특 성 ···················································· 48
03 효 과 ···················································· 48
04 절차상 하자의 치유 ··························· 49
05 절차의 하자와 취소판결의 기속력 ·· 50
06 절차의 하자와 국가배상 ··················· 50
제4절 민원사무처리제도 ·············································· 51
01 개 설 ···················································· 51
02 민원사무처리에관한법률의 주요내용 ···················································· 52
제5절 행정규제기본법 ··················································· 57
01 의 의 ···················································· 57
02 규제법정주의 ······································ 57
03 규제의 존속기한 명시 ······················· 58
04 의견수렴 ·············································· 58
05 의견제출 ·············································· 58
06 기존규제의 자체정비 ························· 58
07 규제개혁위원회(대통령 소속) ··········· 58
제6절 정보공개제도 ·· 59
제1목 정보공개제도 ············································· 59
01 의 의 ···················································· 59
02 정보공개의 필요성과 문제점 ············ 60
제2목 정보공개청구권 ········································· 60
01 알 권리 ················································ 61
02 정보공개청구권 ··································· 61
제3목 공공기관의 정보공개에 관한 법률 ······· 62
01 목적 및 적용범위(제4조) ·················· 62
02 공공기관의 의무 ································· 63
03 정보의 공개 ········································ 65
04 권리보호 ·············································· 74
05 보 칙 ···················································· 77
제7절 개인정보의 보호 ················································ 78
제1목 개인정보보호 ············································· 78
01 의 의 ···················································· 78
02 필요성 ·················································· 78
03 법적 근거 ············································ 78
제2목 개인정보보호법 ········································· 80
01 적용범위(제6조) ·································· 80
02 개인정보보호의 원칙(제3조) ············· 81
03 개인정보보호의 구성요소 ·················· 81
04 개인정보의 수집 및 처리 ················· 86
05 개인정보의 안전한 관리 ··················· 92
06 정보주체의 권리 및 권리보장 ·········· 95
07 정보주체의 권리구제 ························· 97
08 벌칙 및 과태료 ·································· 103
제2장 손해전보제도(사후적 구제) ······································· 106
제1절 국가배상제도 ·· 106
제1목 일반론 ··· 106
01 국가배상제도의 의의 ························· 106
02 우리나라의 국가배상제도와 헌법 ···· 107
03 국가배상제도와 국가배상법 ·············· 108
제2목 공무원의 위법한 직무집행행위로 인한 배상책임 ··································· 109
01 배상책임의 요건(공직고위손) ··········· 109
02 배상청구권의 주체와 시효 ··············· 120
03 배상책임자 ·········································· 122
04 피해자에 대한 공무원의 직접적인 배상책임 ······································ 124
제3목 영조물의 하자로 인한 배상책임 ··········· 126
01 배상책임의 요건(국가배상법 제5조) ···················································· 126
02 면책사유 ·············································· 131
03 제2조와의 경합 ·································· 132
제4목 배상청구절차와 배상액 산정 ················· 133
01 행정절차(임의적 결정전치) ··············· 133
02 사법절차 ·············································· 135
03 배상책임의 내용 ································· 135
제2절 손실보상제도 ·· 136
제1목 관 념 ····· 136
제2목 근 거 ····· 137
01 이론상 근거 ········································ 137
02 실정법상 근거 ···································· 137
제3목 성 질 ····· 137
01 학 설 ···················································· 137
02 판 례 ···················································· 137
제4목 성립요건 ···················································· 139
01 재산권에 대한 공권적 침해 ············· 139
02 침 해 ···················································· 139
03 공공의 필요(공익) ······························ 140
04 특별한 희생 ········································ 140
05 보상규정이 존재할 것 ······················· 144
제5목 보상의 절차와 권리보호 ························· 146
01 공익사업을위한토지등의취득및보상에관한법률상의 절차 ·················· 146
제6목 보상의 내용 ·············································· 151
01 보상의 원칙(일반원칙 : 법률에 의한 정당한 보상) ·························· 151
02 보상의 내용 ········································ 152
제3절 손해전보제도의 보완 ······································· 157
제1목 문제점 ··· 157
제2목 수용유사침해보상 ····································· 158
01 관 념 ···················································· 158
제3목 수용적 침해보상 ······································· 160
01 의 의 ···················································· 160
02 인정 여부 ············································ 160
03 법적 근거 ············································ 160
제4목 희생보상청구권 ········································· 161
01 관 념 ···················································· 161
02 법적 근거 ·········································· 161
제5목 결과제거청구권(원상회복청구권) ··········· 162
01 관 념 ···················································· 162
02 성 질 ···················································· 162
03 내 용 ···················································· 163
04 결과제거청구권의 실현(쟁송절차) ···· 165
제3장 행정쟁송법 ··················· 167
제1절 행정소송법 ······ 167
제1항 일반론 ·· 167
제1목 관 념 ····· 167
01 행정쟁송 개괄 ···································· 167
02 행정소송의 의미 ································· 168
03 기 능 ···················································· 169
04 종 류 ···················································· 169
제2목 행정소송의 한계 ······································· 170
01 문제 제기 ············································ 170
02 사법본질적 한계 ································· 171
03 권력분립적 한계(사법의 적극성) ······ 173
제3목 소장의 접수와 소송의 종료 ··················· 175
01 소장접수 ·············································· 175
02 소송의 종료 ········································ 176
제2항 항고소송 ··················································· 176
제1목 취소소송 ···················································· 176
01 취소소송의 관념 ································· 176
02 본안판단의 전제요건(소송요건) ········ 184
03 가구제 ·················································· 251
04 본안요건(이유의 유무 - 수소법원의 본안판단) ································· 259
05 소의 변경 ············································ 260
06 취소소송의 심리 ································· 263
07 취소소송의 판결 ································· 275
08 상소?재심 및 위헌소원 ··················· 290
09 소송비용 ·············································· 292
제2목 무효등확인소송 ········································· 295
01 관 념 ···················································· 295
02 본안판단의 전제요건(소송요건) ········ 296
03 가구제 ·················································· 299
04 소송의 심리(심리절차상의 원칙) ······ 299
05 판 결 ···················································· 300
06 선결문제 ·············································· 301
제3목 부작위위법확인소송 ································· 304
01 관 념 ···················································· 304
02 본안판단의 전제요건(소송요건) ········ 304
03 소송의 심리 ········································ 309
04 판 결 ···················································· 309
제4목 무명항고소송 ············································· 310
제3항 당사자소송 ··············································· 312
제1목 의 의 ····· 312
01 개 념 ···················································· 312
02 구별개념 ·············································· 312
제2목 종 류 ····· 313
01 실질적 당사자소송 ····························· 313
02 형식적 당사자소송 ····························· 316
제3목 성 질 ····· 317
제4목 당사자?참가인 ········································ 317
01 원고적격 ·············································· 317
02 피고적격 ·············································· 318
03 소송참가 ·············································· 318
제5목 소송의 제기 ·············································· 318
01 요 건 ···················································· 318
02 소의 변경 및 관련청구의 이송?병합 ················································· 318
제6목 판 결 ····· 319
01 판결의 종류와 효력 ··························· 319
02 위헌판결의 공고와 불복 ··················· 319
03 가집행선고 ·········································· 319
제4항 객관적 소송 ············································· 322
제1목 민중소송 ···················································· 322
01 의 의 ···················································· 322
02 적용법규(준용규정) ····························· 322
03 성 질 ···················································· 322
04 민중소송의 예 ···································· 322
제2목 기관소송 ···················································· 324
01 관 념 ···················································· 324
02 적용법규(준용규정) ····························· 325
03 성 질 ···················································· 325
04 감독처분에 대한 소송 ······················· 326
제2절 행정심판법 ······ 329
01 개 설 ···················································· 329
02 행정심판의 종류 ································· 333
03 행정심판의 대상 ································· 337
04 행정심판기관 ······································ 338
05 당사자와 관계인 ································· 343
06 행정심판의 청구 ································· 343