最近(2018) 프랑스 行政判例의 動向과 檢討

초록

The Council of State, the supreme administrative court of France, has been publishing online its leading cases. These rulings are sorted and reviewed according to their importance and uploaded every month, twice a month from October 2018, under the title "Analysis on Cases of the Council of State". This paper introduces and analyzes the following three of these cases from a comparative law perspective. The first case concerns the termination of life-sustaining treatment for patients at the end of life. The Council recognized the legality of a decree which acknowledges the doctors’ authority to decide on the termination of life-sustaining treatment. On the other hand, it guaranteed interested parties' right to effective trial by prohibiting any execution before the period of application for temporary measures expires. The second case deals with the cancellation of decisions creating rights to the recipient. The council ruled that if the administration retroactively cancels a decision creating rights to its recipient, the decision cannot be canceled again even if the cancellation is annulled by a judgment thereby retroactively re-validating the decision. Instead, a third party or supervisory authority of the State, who have been deprived of the opportunity to file a suit against the decision creating rights may again seek the annulment of the said decision through a revocation suit or a supervisory suit within the renewed period of complaint beginning again from notification of the judgment. Also introduced is a summary of recent legislation concerning cancellation and withdrawal; the former with a retroactive effect and the latter effective only for the future. The last is a case regarding procedural improprieties as a ground for withdrawal(abolition) of or exclusion from a decree. The Council sets a rule that one can claim a procedural defect in a decree only in a revocation suit against the decree; not in a revocation suit against denial to withdraw the decree or against a decision based on it. It is in line with the recent trend of the Council of State, which seems to shift its focus to securing legal stability rather than ensuring legality.

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