[효력정지][미간행]
[1] The subject of the determination of the application case seeking suspension or suspension of the administrative disposition
[2] The case holding that the rejection of an application for suspension of validity is not unlawful on the ground that the application for suspension of validity does not meet the requirements under Article 23 (2) of the Administrative Litigation Act without determining whether the disposition itself is legitimate
[1] Article 23 (2) and (3) of the Administrative Litigation Act / [2] Article 23 (2) and (3) of the Administrative Litigation Act
[1] Supreme Court Order 86Du5 dated March 21, 1986 (Gong1986, 791), Supreme Court Order 92Du14 dated June 8, 1992 (Gong1992, 2153), Supreme Court Order 94Du35 Decided October 11, 1994 (Gong194Ha, 3132)
The East National University of Korea (Law Firm Dongwon General Law, Attorneys Nam Gyeong-tae et al., Counsel for the defendant-appellant)
(2) The Minister of Education, Science and Technology (Attorney Choi Ho-hoon et al., Counsel for the plaintiff-appellant)
Seoul High Court Order 2008Ra110 dated May 14, 2008
The reappeal is dismissed.
The grounds of reappeal are examined.
1. Article 23(2) and (3) of the Administrative Litigation Act provides that where there is an urgent need to prevent irrecoverable damage due to the effect of an administrative disposition, its enforcement, or the continuation of the procedure, etc., the court may, ex officio or upon request of a party, decide to suspend the validity, execution, or continuation of the procedure of the administrative disposition, etc., only the existence of the requirements prescribed in the above provision shall be determined in the case of an application seeking suspension of the validity, or suspension of the execution of the procedure. Whether the administrative disposition itself is legitimate or not, is of the nature to be determined after deliberation in the main trial, and thus, it shall not be subject to determination in the case of an application (see Supreme Court Order 86Du5, Mar. 21, 1986; Supreme Court Order 94Du35, Oct. 11, 1994, etc.).
In the same purport, the court below's decision of the court of first instance which rejected the request of the re-appellant for the suspension of validity of this case is just, without determining the re-appellant's assertion as to the legitimacy of the preliminary authorization of law school of this case, and it is not deemed that the execution of the above disposition causes damage difficult to recover or urgent need to suspend its execution to prevent it, and the decision of the court of first instance which rejected the request of the re-appellant for suspension of validity of this case is unlawful
2. Even in accordance with the provisions of the Civil Procedure Act, which are applicable mutatis mutandis to the administrative litigation under Article 8(2) of the Administrative Litigation Act, there is no provision that limits the time when the appellate court can deal with the appeal case after a certain time. Therefore, even if the lower court rendered a decision to dismiss the appeal of this case before the arrival of the other party, it cannot be deemed that the re-appellant’s right to a trial is infringed, and there is no violation of the Constitution, Acts, orders, or rules that affect the judgment of the lower court.
3. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Si-hwan (Presiding Justice)