[집행정지][공2010상,1154]
[1] The meaning of "irreparable damage", which is an element for suspension of execution under Article 23 (2) of the Administrative Litigation Act, and the standard for determining whether "emergency necessity exists to prevent irrecoverable damage caused by disposition, etc., execution or the continuation of procedure"
[2] The purport of Article 23(3) of the Administrative Litigation Act stipulating that "it is not likely to have a significant impact on the public welfare" as a requirement for suspension of execution, and the standard for determining whether "the impact on the public welfare" is significant
[3] In a case where the chairperson of the Arts Council Korea filed a lawsuit seeking confirmation of invalidity of his dismissal disposition and applied again for suspension of the execution of the dismissal disposition, the case affirming the judgment of the court below which dismissed the application for suspension of validity on the ground that it could have a significant impact on the public welfare if the validity is suspended, and it cannot be deemed that there is an urgent need to prevent damage to the applicant due to dismissal
[1] "A loss difficult to recover", which is a requirement for suspension of execution under Article 23 (2) of the Administrative Litigation Act, means a loss that cannot be compensated with money, barring any special circumstance. It refers to a type and intangible loss where the party against whom an administrative disposition was taken is unable to withstanding for reference or where it is considerably difficult to check for reference due to the failure of monetary compensation or where it is considerably difficult for him/her to check for reference. Whether there is "emergency need to prevent damage that may arise due to the disposition, execution or the continuation of procedure" should be determined specifically and individually by comprehensively taking into account not only the nature, mode and contents of the disposition, the nature, content and degree of the damage suffered by the other party to the disposition, the method and degree of recovery and monetary compensation, the degree of possibility of winning the claim on the merits, but also the degree of winning the claim on the merits.
[2] The purpose of Article 23(3) of the Administrative Litigation Act stipulating that “the suspension of execution is not likely to seriously affect the public welfare,” is to consider not only the applicant’s damage but also the impact on the public welfare when deciding whether to suspend the execution. Therefore, whether it has a significant impact on the public welfare should not be determined by absolute criteria, but also by comparing and comparing both the applicant’s “damage difficult to recover” and “public welfare” with the applicant’s “damage difficult to recover” and whether it is necessary to protect the latter even if they sacrifice the former.
[3] In a case where the chairperson of the Arts Council Korea filed a lawsuit seeking confirmation of invalidity of his own dismissal and filed an application for suspension of the execution of the dismissal, the case affirming the judgment of the court below dismissing the application for suspension of the validity of the above dismissal on the ground that the procedure of the dismissal and its nature and contents, the nature, content and degree of damages suffered by the applicant, the method of restitution and monetary compensation which can be presented as remedy other than the suspension of validity, and the difficulty in solving the situation where the applicant's new chairperson and the applicant represent the committee and presides over the above work as the result of the suspension of the validity of the dismissal would cause a problem difficult to solve the situation. As a result, it is highly likely that the above committee's smooth performance of its target business would cause an difficult damage to the applicant due to the dismissal, and it is not recognized that there is an urgent need to prevent it, and that there is a concern that the validity of the dismissal disposition would seriously affect public welfare if the validity of the dismissal disposition is suspended.
[1] Article 23 (2) of the Administrative Litigation Act / [2] Article 23 (3) of the Administrative Litigation Act / [3] Article 23 (2) and (3) of the Administrative Litigation Act
[1] Supreme Court Order 86Du5 dated March 21, 1986 (Gong1986, 791), Supreme Court Order 2003No2 dated April 25, 2003 (Gong2003Sang, 1100), Supreme Court Order 2003No41 dated May 12, 2004, Supreme Court Order 2007No147 dated May 6, 2008 / [2] Supreme Court Order 2000No45 dated February 28, 2001
Applicant (Attorney Hun-Ba et al., Counsel for the plaintiff-appellant)
The Minister of Culture, Sports and Tourism (Law Firm Barun, Attorneys Lee Sung-hoon et al.)
Seoul High Court Order 2010Ra51 dated March 19, 2010
The reappeal is dismissed.
The grounds of reappeal are examined.
The "damage difficult to recover", which is a requirement for suspension of execution as stipulated in Article 23 (2) of the Administrative Litigation Act, means a loss that cannot be compensated in money, barring any special circumstance. This refers to a monetary compensation where monetary compensation is impossible, which refers to a type of or intangible damage where the party against whom an administrative disposition was taken cannot with reference or where it is considerably difficult to check for reference (see, e.g., Supreme Court Order 86Du5, Mar. 21, 1986; Supreme Court Order 2003Du2, Apr. 25, 2003; etc.); and the issue of whether "emergency necessity is necessary to prevent irrecoverable damage from disposition, etc. or its enforcement or its continuation; the nature, content and degree of the damage that the other party to the disposition suffers; the method and degree of recovery, monetary compensation; and the degree of possibility of winning the claim should be determined individually and individually in consideration of the nature and nature of the disposition; and etc. (see, e.g., Supreme Court Decision 2014>
In addition, the purport of Article 23(3) of the Administrative Litigation Act stipulating that “no other requirement of suspension of execution may seriously affect the public welfare” is that not only the applicant’s damage but also the impact on the public welfare should be taken into consideration in determining whether to suspend the execution. Therefore, whether the impact on the public welfare is significant or not should not be determined by absolute criteria, but also by comparing and comparing both the applicant’s “damage difficult to recover” and “public welfare” with the applicant’s “damage difficult to recover” and whether it is necessary to protect the latter even if the former sacrifice (see Supreme Court Order 200Da45, Feb. 28, 2001, etc.).
In full view of all the circumstances, including the progress and nature of the instant dismissal disposition, the nature, content and degree of the damage inflicted on the applicant, the method and difficulty of restitution and monetary compensation that can be presented as remedy other than the suspension of validity in this case, and the applicant after the instant dismissal disposition, up to about one year, the commission of this case appointed the applicant as the chairperson and the new chairperson performed the duties of the chairperson of the commission after February 12, 2009. In such a situation, when the validity of the instant dismissal disposition is suspended, the applicant’s restoration of the status of the chairperson would cause a problem difficult to solve the problem, and thus, it would not be able to secure predictability and legal stability in the internal and external legal relations of the commission of this case, and as a result, the commission of this case would be likely to interfere with the smooth performance of its purpose business, the court below determined that the dismissal of this case could not be recognized as having a serious impact on public welfare, as it could not cause damage to the applicant due to the instant dismissal.
In light of the above legal principles and records, the judgment of the court below is just and there is no error in the misapprehension of legal principles as alleged in the grounds for reappeal.
Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Young-ran (Presiding Justice)