Principle of Non-Suspension of Execution
Principle of Non-Suspension of Execution
- Even if a suit for revocation has been filed, the effect or execution of a disposition, etc. or the continuation of proceedings in respect of it, is not suspended in principle (Article 23 (1) of the Administrative Litigation Act).
Application for Suspension of Execution
Meaning of Suspension of Execution
- “Suspension of execution” is a decision made by the court at the relevant parties’ application or ex officio, where a suit for revocation has been filed and there is an urgent need to prevent a harm that would be difficult to repair from being caused by a disposition, etc., its execution, or the continuation of proceedings in respect of it, to temporarily suspend the execution of such disposition, etc. or the continuation of proceedings in respect of it (Article 23 (2) of the Administrative Litigation Act).
- Such a suspension of disposition is possible only where a suit for revocation and a suit for affirmation of nullity, etc. have been filed (Article 23 (2) and Article 38 (1) of the Administrative Litigation Act).
Application for Suspension of Execution
- An application for suspension of execution is made at the same time as the filing of the suit on the merits (or while the case on the merits is pending), in order to temporarily suspend the effect of an administrative disposition.
Requirements for Suspension of Execution
There must be a benefit to suspension of execution
- If the disposition ceases to be effective because its execution is complete, or ceases to be effective because its purpose has been achieved, then suspension of execution is not accepted.
· However, even where the execution is complete, suspension of execution is possible if the state of illegality is continuing or if, as a result of suspending the effect of the disposition, the factual state of affairs may be restored to its original state.
- In the case of an application for suspension of execution made in respect of a disposition involving refusal, suspending the effect of the disposition merely results in a state that is no different from what it would be had there been no disposition at all, and does not involve a proactive step beyond this, such as an order to the administrative agency for its disposition. Therefore, for the purposes of adjudicating on the revocation of the disposition involving refusal, there is no benefit to seeking the suspension of execution (
Supreme Court’s Decision dated May 2, 1991, Case No. 91Du15).
Lawsuit on the merits of the case must be lawfully pending
- For the suspension of execution in respect of an administrative disposition, it is a requirement that a lawsuit on the merits, such as a suit for revocation, has been filed and is pending (Article 23 (2) and Article 38 of the Administrative Litigation Act).
- Since a lawsuit on the merits of the case must be a lawful suit which satisfies the requirements for litigation, if there is a requirement to go through an administrative appeal then this shall be complied with.
· However, there is no need to have gone through an administrative appeal at the time of the application for suspension of execution. Not only that, unless the time period for filing an administrative appeal has been exceeded, if the lawsuit has been filed within the period for filing an administrative appeal, then it is possible to apply for suspension of execution, even if the administrative appeal has not yet been filed, on the basis that this could be rectified subsequently (
Supreme Court’s Decision dated November 30, 1970, Case No. 70Geu5).
There must be a concern over causation of harm that would be difficult to repair
- A “harm that would be difficult to repair” is a tangible or intangible damage in a case where monetary compensation is impossible, or where, as a matter of social norm, it would be markedly difficult for the person subject to the administrative disposition to bear and withstand the damage just with monetary compensation. The burden of arguing and clearly explaining such harm falls on the applicant (
Supreme Court's Decision dated December 20, 1999, Case No. 99Mu42).
There must be an urgent need
- The suspension of execution is only permitted where, because of an urgency in the likely causation of harm that would be difficult to repair, one cannot afford to wait for a judgment on the merits.
There must be no concern that the suspension of execution would have a serious impact on public welfare
- If there is a concern that the suspension of execution would have a serious impact on public welfare, and if such an impact is deemed to be worthy of safeguarding against even at the expense of sacrificing the harm that the applicant would suffer, then the suspension of execution shall not be possible (Article 23 (1) of the Administrative Litigation Act).
· A “concern over serious impact on public welfare” does not refer to a concern over an abstract or general infringement on the public interest, but refers to a case where there is a heightened concern that, due to the suspension of execution of the relevant disposition, a serious harm would be exerted on the public interest both specifically and individually. The burden of arguing and clearly explaining such concern falls on the respondent (
Supreme Court's Decision dated December 20, 1999, Case No. 99Mu42).
It must not be clear that there are no grounds for the claim on the merits
- Since it would be contrary to the spirit of the regime to accept a suspension of the effect or execution of a disposition in circumstances where there is no possibility that the disposition would be revoked in a lawsuit on the merits of the case, it must not be clear, even in relation to the suspension of execution case itself, that there are no grounds for the claim on the merits (
Supreme Court's Decision dated November 26, 1999 Case No. 99Bu3).
· If a disposition cannot be viewed as illegal even on the basis of the applicant’s argument itself, or if the administrative agency has actively and clearly explained the lawfulness of the disposition, then an application for suspension of execution shall be dismissed (
Supreme Court's Decision dated June 8, 1992, Case No. 92Du14).
Procedure for Suspension of Execution
Procedure for Suspension of Execution
- The suspension of execution is carried out either at the relevant party's application or by the court ex officio (Article 23 (2) of the Administrative Litigation Act).
- The competent court for the suspension of execution is the court in which the case on the merits is pending (Article 23 (2) of the Administrative Litigation Act).
- In applying for the suspension of execution, the plaintiff shall clearly explain the grounds for such an application (Article 23 (4) of the Administrative Litigation Act).
Effect of Decision Granting Suspension of Execution
Effect of Decision Granting Suspension of Execution
- A decision granting the suspension of execution is binding on the administrative agency that is the relevant party, and other related administrative agencies, in relation to the case concerned (Article 23 (6) and Article 30 (1) of the Administrative Litigation Act).
- Therefore, since the binding force of the relevant disposition, etc. is suspended for the time being by virtue of a decision granting the suspension of execution, it is as if the relevant disposition, etc. had never existed.
Dissatisfaction with Decision on Suspension of Execution
Dissatisfaction with Decision on Suspension of Execution
- In relation to a decision granting the suspension of execution or a decision of dismissal, an immediate appeal may be raised within one week of the date on which the decision is notified; provided that, in such a case an immediate appeal in respect of a decision granting the suspension of execution does not have the effect of suspending the execution of the decision (Article 23 (5) of the Administrative Litigation Act and Article 444 of the Civil Procedure Act).
Revocation of Suspension of Execution
Revocation of Suspension of Execution
- If, after the decision on the suspension of execution, it has a serious impact on public welfare or the grounds for suspension has ceased to exist, the court may, by its decision at the application of the relevant party or ex officio, revoke the decision on the suspension of execution (Article 24 (1) of the Administrative Litigation Act).
- In applying for the revocation of the suspension of execution, the plaintiff shall clearly explain the grounds for such an application (Article 23 (4) and (5) of the Administrative Litigation Act).
- In relation to a decision on the revocation of the decision on the suspension of execution, an immediate appeal may be raised within one week of the date on which the decision is notified (Article 24 (2) and Article 23 (5) of the Administrative Litigation Act and Article 444 of the Civil Procedure Act).