Submission of Written Application for Suspension of Execution
Suspension of Execution- “Suspension of execution” is a regime for suspending a disposition’s effect or execution until a ruling is made on the administrative appeal, because there is a concern that, while the administrative appeal is ongoing, the appellant would suffer a harm that is difficult to repair.
Principle of Non-Suspension of Execution and Exceptions- Even if an administrative appeal is filed, a disposition’s effect, execution or continuation of proceedings is not affected in principle (Article 30 (1) of the Administrative Appeals Act).
- The administrative appeals commission, if it deems that there is an urgent need to prevent a serious harm from being caused by a disposition, execution of disposition or continuation of proceedings, may, ex officio or at the application of the relevant party, decide to suspend the execution of disposition or continuation of proceedings in whole or in part (referred to as “suspension of execution” below) (The main body of Article 30 (2) of the Administrative Appeals Act).
- However, a suspension of the disposition's effect is not permitted where its purpose can be achieved by suspending the disposition’s execution or continuation of proceedings (Proviso to Article 30 (2) of the Administrative Appeals Act).
Requirements for Suspension of Execution- The disposition that is the subject of the suspension of execution must exist
· If the execution of the disposition is already complete or its purpose has been achieved, then since the disposition that is the subject of the suspension has no substance, suspension of execution is impossible.
√ There is no practical benefit to an application for suspension of execution in respect of a disposition involving refusal (Supreme Court’s Decision dated May 2, 1991, Case No. 91Du15). This is because in the case of a disposition involving refusal, suspending the disposition’s effect 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.
- Administrative appeal for the case in question must be ongoing
· Suspension of execution in relation to a disposition requires the administrative appeal for the case in question, such as an appeal for revocation, to be ongoing (Supreme Court’s Decision dated June 15, 2007, Case No. 2006Mu89).
- The need to prevent a serious harm from being caused must be deemed to be urgent (Article 30 (2) of the Administrative Appeals Act).
- There must be no concern that the suspension of execution would have a serious impact on public welfare (Article 30 (3) of the Administrative Appeals Act).
· A “serious impact on public welfare” is an impact that goes beyond a mere interruption to realization of the public good, with its gravity being such that, even if it results an irreparable harm to the individual, that harm should be borne by the individual.
- It must not be clear that there are no grounds for this appeal
· This is because it would go against the spirit of the regime if the suspension of a disposition's effect or execution were to be accepted in circumstances where there is no possibility that the disposition would be revoked on the merits (Supreme Court's Decision dated November 26, 1999 Case No. 99Bu3).
Subject Matter and Scope of Suspension of Execution- The subject matter of a suspension of execution is the disposition's effect, the disposition’s execution or the continuation of proceedings, and the scope of a suspension of execution is a part or the whole of such effect, execution or continuation (The main body of Article 30 (2) of the Administrative Appeals Act).
※ In these cases, a suspension of the disposition's effect is not permitted where its purpose can be achieved by suspending the disposition’s execution or continuation of proceedings (Proviso to Article 30 (2) of the Administrative Appeals Act).
Submission of Written Application for Suspension of Execution- Application for Suspension of Execution
· If the relevant party wishes to apply for suspension of execution, he/she shall, either at the same time as the filing of the appeal or before the decision of the commission or subcommission in respect of the appeal, submit to the administrative appeals commission a document setting out the purpose of and the grounds for the application (The main body of Article 30 (5) of the Administrative Appeals Act).
· In a case where a written administrative appeal is submitted to the administrative agency (appellee), if an application for suspension of execution is being made at the same time as the appeal, then the application shall be accompanied by a copy of the written appeal and the filing receipt (Proviso to Article 30 (5) of the Administrative Appeals Act).
- Decision on Suspension of Execution
· The decision on suspension of execution is made by the administrative appeals commission(Article 30 (2) of the Administrative Appeals Act).
√ The chairperson, if he/she deems that waiting for the administrative appeals commission's review and decision may cause serious harm, may make a decision ex officio in lieu of the administrative appeals commission's review and decision (Former part of Article 30 (6) of the Administrative Appeals Act).
√ If the chairperson makes an ex officio decision on suspension of execution, this shall be reported to the administrative appeals commission for its ratification. In this case, if the administrative appeals commission's ratification is not obtained, then the chairperson shall revoke his/her decision on the suspension of execution or the revocation of suspension of execution (Latter part of Article 30 (6) of the Administrative Appeals Act).
· The administrative appeals commission shall, upon reviewing and deciding on a suspension of execution or a revocation of suspension of execution, serve an authenticated copy of the decision to the relevant party without delay (Article 30 (7) of the Administrative Appeals Act).
Effect of Decision on Suspension of Execution- If an application for suspension of execution is accepted, then the relevant disposition’s effect or execution is suspended until a ruling is made on the administrative decision.
- Suspension of execution has an effect not only on the applicant and the respondent as the relevant parties, but also on any related administrative agencies and third parties.
Revocation of Suspension of Execution- If, after the decision to suspend execution, the suspension of execution has a serious impact on public welfare or the grounds for suspension has ceased to exist, the administrative appeals commission may, ex officio or at the application of the relevant party, revoke the decision to suspend execution (Article 30 (4) of the Administrative Appeals Act).
- If the relevant party wishes to apply for revocation of suspension of execution, he/she shall, after the decision to suspend execution but before the decision of the commission or subcommission in respect of the appeal, submit to the administrative appeals commission a document setting out the purpose of and the grounds for the application together with a copy of the written appeal and the filing receipt (Article 30 (5) of the Administrative Appeals Act).