2015 9.7급 피데스 행정법총론

제1편 행정법 서론

제1장 행정 ······························· 2
제1절 행정개념의 성립 ········································· 2
1. 행정개념의 성립 ······································ 2
2. 권력분립이론 ············································ 2
제2절 행정의 의의 ··· 4
1. 개 설 ·········· 4
2. 실질적 의미의 행정 ································ 5
3. 행정과 다른 국가작용과의 구별 ·········· 6
제3절 통치행위 ········· 7
1. 개 설 ·········· 7
2. 외국의 사례 ·············································· 8
3. 통치행위의 인정여부 및 근거 ·············· 8
4. 우리나라에서의 통치행위 ······················ 9
제4절 행정의 분류 ··· 15

제2장 행정법 ··························· 17
제1절 행정법의 의의 ············································· 17
1. 개 설 ·········· 17
2. 행정법의 개념적 요소 ···························· 17
제2절 행정법의 성립과 발달 ······························ 18
1. 행정법의 성립 ·········································· 18
2. 행정법의 발달 ·········································· 18
제3절 행정법의 특수성 ········································· 20
1. 개 설 ·········· 20
2. 규정형식의 특수성 ·································· 21
3. 규정성질의 특수성 ·································· 21
4. 규정내용의 특수성 ·································· 22
제4절 우리나라 행정법의 기본원리 ················· 24
제5절 법치행정의 원리 ········································· 26
1. 의 의 ·········· 26
2. 법치행정의 구체적 내용(O. Mayer) ···· 26
3. 형식적 법치주의 ······································ 28
4. 실질적 법치주의 ······································ 28
제6절 행정법의 법원(法源) ································· 35
1. 개 설 ·········· 35
2. 성문법원 ····· 37
3. 불문법원 ····· 41
제7절 행정법의 일반원칙 ···································· 46
1. 개 설 ·········· 46
2. 비례의 원칙(과잉금지의 원칙) ·············· 47
3. 신뢰보호의 원칙 ······································ 56
4. 평등의 원칙 ·············································· 78
5. 행정의 자기구속의 법리 ························ 83
6. 부당결부금지의 원칙 ······························ 87
제8절 행정법의 효력 ············································· 91
1. 시간적 효력 ·············································· 91
2. 지역적 효력 ·············································· 100
3. 대인적 효력 ·············································· 100

제3장 행정상 법률관계 ····· 102
제1절 행정상 법률관계의 의의 ························· 102
1. 개 설 ·········· 102
2. 공법과 사법 ·············································· 103
제2절 행정상 법률관계의 종류 ························· 104
1. 개 설 ·········· 104
2. 행정조직법관계 ········································ 105
3. 행정작용법관계 ········································ 105
제3절 행정상 법률관계의 당사자 ····················· 114
1. 행정주체 ····· 114
2. 행정객체 ····· 119
제4절 행정상 법률관계의 특질 ························· 120
1. 행정의사의 법률적합성 ·························· 120
2. 행정의사의 공정력 ·································· 120
3. 행정의사의 구성요건적 효력 ················ 120
4. 행위의사의 존속력 ·································· 120
5. 행정의사의 강제력 ·································· 120
6. 권리의무의 특수성 ·································· 121
7. 권리구제수단의 특수성 ·························· 121
제5절 행정상 법률관계의 내용 ························· 122
1. 공권과 공의무 ·········································· 122
2. 개인적 공권(공권과 반사적 이익) ········ 128
3. 공권의 확대화 경향 ································ 131
4. 무하자재량행사청구권 ···························· 152
5. 행정개입청구권 ········································ 156
제6절 행정법관계에 대한 사법규정의 적용 · 160
1. 개 설 ·········· 160
2. 사법규정의 적용 ······································ 160
3. 사법규정의 유추적용의 한계 ················ 160
4. 공법규정의 유추적용 ······························ 161
제7절 특별권력관계(특별행정법관계) ·············· 162
1. 전통적 특별권력관계이론 ······················ 162
2. 인정여부에 관한 학설 ···························· 164
3. 특별권력관계의 성립과 소멸 ················ 166
4. 특별권력관계의 종류 ······························ 166
5. 특별권력관계에서의 내용 및 그 한계 167
6. 현대의 특별행정법관계와 법치주의 ····· 168

제4장 행정법상 법률요건과 법률사실 ····················· 172
제1절 의의 및 종류 172
1. 의 의 ·········· 172
2. 법률사실의 종류 ······································ 173
제2절 공법상의 사건 ············································· 174
1. 시간의 경과 ·············································· 174
2. 주소.거소 · 185
제3절 공법상 사무관리.부당이득 ··················· 187
1. 공법상 사무관리 ······································ 187
2. 공법상 부당이득 ······································ 187
제4절 공법상의 행위 ············································· 190
1. 공법행위 ····· 190
2. 사인의 공법행위 ······································ 190

제2편 일반행정작용법

제1장 행정입법 ······················ 208
제1절 개 설 ················ 208
1. 행정입법의 의의 ······································ 208
2. 행정입법의 필요성 ·································· 208
3. 행정입법에 따르는 이론적 문제－법치주의의 관철 ························ 209
제2절 법규명령 ········· 210
1. 개 념 ·········· 210
2. 종 류 ·········· 212
3. 근 거 ·········· 213
4. 한 계 ·········· 214
5. 성립요건.효력요건.하자.소멸 ········ 222
6. 법규명령에 대한 통제 ···························· 226
7. 행정입법부작위 ········································ 233
제3절 행정규칙 ········· 236
1. 개 설 ·········· 236
2. 종 류 ·········· 236
3. 행정규칙의 법적 성질(행정규칙의 법규성) ······································· 240
4. 행정입법의 규율형식과 규율내용의 불일치 ······································ 242
5. 행정규칙의 근거와 한계 ························ 253
6. 성립요건.효력요건.하자.소멸 ········ 253
7. 행정규칙의 효력 ······································ 254
8. 행정규칙의 통제 ······································ 258
9. 개별적 행정규칙 ······································ 260

제2장 행정행위의 종류와 내용 ··································· 262
제1절 행정행위의 개념 ········································· 262
1. 개 설 ·········· 262
2. 행정행위의 개념적 징표 ························ 263
3. 행정쟁송법상 처분과의 관계 ················ 264
제2절 행정행위의 기능 및 특수성 ··················· 265
1. 기 능 ·········· 265
2. 특수성 ········· 265
제3절 행정행위의 종류 ········································· 266
제4절 복효적(複效的) 행정행위 ························ 273
1. 개 설 ·········· 273
2. 복효적 행정행위의 실체법상 문제 ······ 274
3. 복효적 행정행위의 절차법상 문제 ······ 274
4. 복효적 행정행위의 쟁송법상 문제 ······ 275
제5절 기속행위와 재량행위 ································ 278
1. 개 설 ·········· 278
2. 기속행위와 재량행위의 구별필요성 ····· 279
3. 구별의 기준 ·············································· 282
4. 재량권의 한계 ·········································· 293
5. 재량행위에 대한 통제 ···························· 302
6. 불확정개념과 판단여지 ·························· 304
제6절 행정행위의 내용 ········································· 309
1. 개 설 ·········· 309
2. 법률행위적 행정행위 ······························ 309
3. 준법률행위적 행정행위 ·························· 342
제7절 행정행위의 부관 ········································· 353
1. 개 설 ·········· 353
2. 부관의 종류 ·············································· 355
3. 부관의 한계 ·············································· 362
4. 위법한 부관과 행정행위의 효력 ·········· 366
5. 위법한 부관의 행정상 쟁송 ·················· 369
제8절 행정행위의 적법요건(성립요건과 효력발생요건) ·························· 373

제3장 행정행위의 효력과 하자 ··································· 378
제1절 행정행위의 효력 ········································· 378
1. 구속력(내용적 구속력) ···························· 378
2. 公定力(예선적 효력) ······························· 379
3. 構成要件的 效力····································· 382
4. 存續力(確定力) ········································ 389
5. 强制力········ 394
제2절 행정행위의 하자(일반론) ························· 395
1. 개 설 ·········· 395
2. 행정행위의 무효와 취소의 구별 ·········· 397
3. 하자의 승계 ·············································· 404
4. 하자 있는 행정행위의 치유와 전환 ···· 411
제3절 행정행위의 무효 ········································· 418
1. 의 의 ·········· 418
2. 무효원인 ····· 419
3. 무효의 효과와 무효를 주장하는 방법 423
제4절 행정행위의 취소 ········································· 425
1. 개 설 ·········· 425
2. 취소의 목적과 성질 ································ 428
3. 취소권자 ····· 428
4. 취소의 대상 ·············································· 429
5. 취소권의 근거 ·········································· 429
6. 취소의 사유 ·············································· 430
7. 취소권의 제한 ·········································· 431
8. 취소의 절차 ·············································· 434
9. 취소의 효과 ·············································· 434
10. 취소의 취소(하자 있는 직권취소의 취소) ······································· 436
제5절 행정행위의 철회 ········································· 438
1. 철회의 의의 ·············································· 438
2. 철회권의 행사 ·········································· 438
3. 철회의 효과 ·············································· 442
제6절 행정행위의 실효 ········································· 444

제4장 그 밖의 행정의 주요 행위형식 ····················· 446
제1절 행정상 확약 ··· 446
1. 개념 및 대상 ············································ 446
2. 법적 성질 ··· 447
3. 확약의 법적 근거와 한계 ······················ 448
4. 확약의 요건 ·············································· 448
5. 확약의 효과 ·············································· 449
6. 권리구제 ····· 450
제2절 행정계획 ······· 451
1. 개 설 ·········· 451
2. 행정계획의 종류 ······································ 453
3. 행정계획의 법적 성질 ···························· 454
4. 행정계획의 법적 근거와 절차 ·············· 456
5. 행정계획의 법적 효력 ···························· 457
6. 행정계획에 대한 통제 ···························· 459
7. 계획재량과 형량명령 ······························ 460
8. 행정계획과 권리구제 ······························ 463
9. 계획보장청구권 ········································ 465
제3절 공법상 계약 ··· 470
1. 개 설 ·········· 470
2. 유용성과 법적 근거 ································ 472
3. 각국에서의 유형 ······································ 472
4. 인정범위 및 한계 ···································· 473
5. 종 류 ·········· 473
6. 특수성 ········· 474
제4절 공법상 합동행위 ········································· 479
제5절 행정상 사실행위 ········································· 480
1. 의 의 ·········· 480
2. 사실행위의 종류 ······································ 480
3. 법적 근거와 한계 ···································· 481
4. 사실행위에 대한 권리구제 ···················· 482
제6절 비공식 행정작용 ········································· 483
1. 개 설 ·········· 483
2. 비공식 행정작용에 관한 평가 ·············· 484
3. 법적 문제 ··· 485
제7절 행정지도 ········· 486
1. 행정지도의 의의 ······································ 486
2. 행정지도의 유용성과 문제점 ················ 487
3. 행정지도의 방식과 유형 ························ 487
4. 행정지도의 법적 근거와 한계 ·············· 488
5. 행정지도와 권리구제 ······························ 489
제8절 행정의 자동화작용 ···································· 493
1. 의 의 ·········· 493
2. 법적 성질 ··· 493
3. 특별한 규율 ·············································· 493
4. 행정자동장치의 하자와 권리구제 ········· 493
제9절 행정의 사법적 활용 ·································· 494
1. 개 설 ·········· 494
2. 협의의 국고작용 ······································ 494
3. 행정사법 ····· 495

제5장 행정과정의 법적 규율 ········································ 497
제1절 행정절차 ········· 497
1. 개 설 ·········· 497
2. 행정절차의 필요성(기능) ························ 498
3. 행정절차의 발전 ······································ 498
4. 행정절차의 근거 ······································ 499
5. 행정절차법의 통칙규정 ·························· 501
6. 행정절차법의 주요내용 ·························· 510

제3편 행정의 실효성확보수단

제1장 개설 ······························· 598

제2장 행정상 강제집행 ····· 600
제1절 개 설 ················ 600
1. 의의 및 구별개념 ···································· 600
2. 행정상 강제집행의 근거 ························ 601
제2절 대집행 ·············· 602
제3절 이행강제금(집행벌) ···································· 614
제4절 직접강제 ········· 618
제5절 행정상 강제징수 ········································· 619

제3장 행정상 즉시강제와 행정조사 ·························· 627
제1절 행정상 즉시강제 ········································· 627
1. 개 설 ·········· 627
2. 법적 성질 ··· 627
3. 행정상 즉시강제의 근거 ························ 628
4. 행정상 즉시강제의 수단 ························ 628
5. 행정상 즉시강제의 한계 ························ 629
6. 행정상 즉시강제에 대한 구제 ·············· 630
제2절 행정조사 ········· 632
1. 행정조사의 개념 ······································ 632
2. 행정조사의 종류 ······································ 632
3. 행정조사의 기본원칙 및 한계 ·············· 633
4. 행정조사계획의 수립 및 조사대상의 선정 ········································ 636
5. 행정조사의 방법 ······································ 636
6. 행정조사의 실시 ······································ 639
7. 자율관리체제의 구축 등 ························ 641
8. 행정조사의 점검 및 평가 ······················ 642
9. 위법한 행정조사의 효과 ························ 642
10. 행정조사에 대한 권리구제 ·················· 642

제4장 행정벌 ··························· 644
제1절 개 설 ················ 644
1. 의의 및 성질 ············································ 644
2. 행정벌의 근거 ·········································· 645
3. 행정벌의 종류 ·········································· 645
제2절 행정형벌의 특수성 ···································· 647
제3절 행정질서벌의 특수성 ································ 657

제5장 새로운 의무이행확보수단 ································· 667
제1절 개 설 ················ 667
1. 행정환경의 변화 ······································ 667
2. 새로운 의무이행확보수단의 등장 ········· 667
제2절 금전적인 제재 ············································· 668
제3절 비금전적인 제재 ········································· 677
1. 공급거부 ····· 677
2. 관허사업의 제한 ······································ 678
3. 기타의 수단 ·············································· 679
제4절 행정상 공표 ··· 680
1. 의 의 ·········· 680
2. 법적 성질 및 근거 ·································· 680
3. 공표에 대한 권리구제 ···························· 683

제4편 행정구제법

제1장 개설 ······························· 686
1. 행정구제제도 개설 ·································· 686
2. 청원제도 ····· 687
3. 옴부즈만제도 ············································ 687
4. 국민권익위원회 ········································ 688

제2장 행정상 손해배상 ····· 691
제1절 개 설 ················ 691
1. 행정상 손해배상제도의 의의 ················ 691
2. 행정상 손실보상제도와의 관계 ············ 692
3. 행정상 손해배상제도의 규범적 구조 ··· 693
제2절 공무원의 직무상 불법행위로 인한 손해배상책임 ························ 695
1. 배상책임의 요건 ······································ 695
2. 손해배상책임 ············································ 724
3. 배상책임의 내용 ······································ 727
제3절 영조물의 설치.관리의 하자로 인한 배상책임 ···························· 738
1. 개 설 ·········· 738
2. 배상책임의 요건 ······································ 738
3. 배상책임 ····· 750
제4절 손해배상청구의 절차 ································ 753

제3장 행정상 손실보상 ····· 755
제1절 개 설 ················ 755
1. 개 념 ·········· 755
2. 행정상 손실보상의 근거 ························ 757
제2절 손실보상의 요건 ········································· 760
1. 개 설 ·········· 760
2. 손실보상의 구체적 요건 ························ 761
제3절 손실보상의 기준과 내용 ························· 770
1. 손실보상의 기준 ······································ 770
2. 손실보상의 개별적 내용 ························ 775
제4절 손실보상의 방법과 불복절차 ················· 786
1. 손실보상의 방법 ······································ 786
2. 공용수용의 절차 ······································ 790
3. 재결에 대한 불복절차 ···························· 794
제5절 손해전보를 위한 그 밖의 제도 ············ 796
1. 개 설 ·········· 796
2. 수용유사침해보상 ···································· 796
3. 수용적 침해보상 ······································ 798
4. 비재산적 법익침해에 대한 손실보상(희생보상) ······························· 798
제6절 결과제거청구권 ··········································· 800
1. 개 설 ·········· 800
2. 법적 근거 ··· 801
3. 성립요건 ····· 801
4. 내용 및 한계 ············································ 802
5. 쟁송절차 ····· 803

제4장 행정심판 ······················ 804
제1절 행정상 쟁송제도 ········································· 804
1. 행정쟁송의 의의 ······································ 804
2. 행정쟁송의 종류 ······································ 804
제2절 행정심판제도 · 807
1. 개 설 ·········· 808
2. 행정심판의 종류 ······································ 810
3. 행정심판의 대상 ······································ 812
4. 당사자와 관계인 ······································ 812
5. 행정심판기관 ············································ 816
6. 행정심판의 청구 ······································ 821
7. 행정심판의 심리 ······································ 830
8. 행정심판의 재결 ······································ 833
9. 행정심판의 불복고지제도 ······················ 840

제5장 행정소송 ······················ 844
제1절 개 설 ················ 844
1. 행정소송의 의의 ······································ 844
2. 행정소송제도의 유형 ······························ 844
3. 행정소송의 기능 ······································ 845
4. 행정소송의 특수성(실정법상 특색) ······ 845
제2절 행정소송의 한계 ········································· 845
1. 개 설 ·········· 845
2. 헌법 명문규정상의 한계 ························ 845
3. 사법권의 본질에 의한 한계 ·················· 846
4. 권력분립원칙에서 오는 한계 ················ 847
제3절 행정소송의 종류 ········································· 849
1. 내용에 의한 분류 ···································· 849
2. 성질에 의한 분류 ···································· 851
제4절 항고소송 ········· 851
1. 취소소송 ····· 851
2. 무효등확인소송 ········································ 969
3. 부작위위법확인소송 ································ 974
제5절 당사자소송 ····· 981
1. 개 설 ·········· 981
2. 종류와 적용법규 ······································ 982
3. 소송절차 ····· 986
4. 소송의 종료 ·············································· 987
제6절 객관적 소송 ··· 990
1. 개 설 ·········· 990
2. 종 류 ·········· 990

부 록 색 인
.사항색인 ································ 2
.판례색인 ································ 17