Case on the Prohibition of Declaring Provisional Execution against the State

[1 KCCR 1, 88Hun-Ka7, January 25, 1989]

A. Background of the Case

The Court struck down the proviso of Article 6 Section 1 of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings, which grants the state a superior legal status of being immune from provisional execution.

Article 6 Section 1 of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings provides that all judgments on property rights should also include an order of provisional execution regardless of the party's request unless there is a good cause. However, the proviso states that "an order of provisional execution cannot be granted in the event of a claim of property rights against the state," making it impossible for the prevailing private individual to execute the judgment provisionally against the state.

The petitioner, who was suing the state to recover deposit money, requested a constitutional review of the aforementioned provision, which was granted and brought to the Constitutional Court.

B. Summary of the Decision

The Constitutional Court found the proviso of Article 6 Section 1 of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings unconstitutional, as follows.

Since the principle of equality ought to be applied to "the right of property of all citizens" guaranteed by Article 23 of the Constitution and “the right to a speedy trial" guaranteed by Article 27 Section 3 of the Constitution, no party shall be discriminated in civil proceedings that are measures to ensure private rights such as property rights. Even the state should not be favored without a reasonable cause while being a party of a civil lawsuit.

An order of provisional execution deters the unnecessary abuse of a right to appeal and allows the expedited enforcement of rights, thereby protecting citizens’ property rights and right to a speedy trial. Article 6 Section 1 of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings mandates granting an order of provisional execution to the prevailing state but prohibits such order for a prevailing private person no matter how convincing his or her

judgment is. The provision therefore clearly discriminates against individual parties in protecting property rights and the right to a speedy trial.

An order of provisional execution is not intended to prevent the impossibility of execution, therefore its necessity shall not be denied for the reason that there is no concern for failure to execute against the state. Difficulties may occur when the case is reversed on appeal and restoration to original state becomes necessary, which however, is a common problem of the provisional execution system, not an exclusive one where the state is defendant. Thus, it is hard to find any reasonable grounds to exclude the state from orders of provisional execution.

C. Significance of the Decision and Aftermath of the Case

This case holds significance for not only was it the first decision made by the Constitutional Court since its establishment, but also the first decision of unconstitutionality.

The major press reported this case as the first decision of unconstitutionality in eighteen years since the Supreme Court's ruling of unconstitutionality on Article 2 Section 1 of the State Compensation Act in 1971 (Chosun Daily, January 26, 1989). Furthermore, editorials praised it as a turning point for our state-centered way of thinking in legislation and enforcement of laws (Hankyoreh Newspaper, January 27, 1989).

This provision was removed in the amendment by Act No. 4203 on January 13, 1990.