[1] Whether it is not clear whether the applicant's request for the principal of the case should not be justified even by the suspension of execution itself (affirmative)

[2] The case holding that as to an application for the suspension of validity of a non-Confidence resolution of the Education Committee's design resolution, it is obvious that the claim on the merits itself does not meet the requirement of suspension of validity

[1] In a case seeking suspension of the validity of an administrative disposition or suspension of execution, the validity of an administrative disposition itself is not determined in principle, since it is not determined through deliberation in the judgment on the merits, and the validity of the administrative disposition itself is not determined in principle, and only the existence of the requirements prescribed in Articles 23(2) and 23(3) of the Administrative Litigation Act with respect to whether the administrative disposition will be effective or suspended, but the suspension of its validity or suspension of execution is the object of determination. However, in order to prevent the applicant from being rendered a favorable judgment at the same time until he/she receives a favorable judgment in the case on the merits, the applicant’s status is protected until he/she receives a favorable judgment in the lawsuit on the merits. Thus, recognizing the validity of the disposition or the suspension of execution without possibility of revocation in the lawsuit on the merits is contrary to the purport of the system

[2] In a case where at the regular meeting of the Education Committee, a bill of non-Confidence agreement was submitted by the document of a written statement form signed by a majority of the incumbent members among the meetings on the agenda at the regular meeting of the Education Committee, and was adopted as a bill by the majority of all incumbent members and passed as a whole without objection, the chairman of the non-Confidence subject to non-Confidence applies for the suspension of the validity of the relevant design non-Confidence resolution, on the grounds that the non-Confidence resolution itself is obvious by the case of the suspension of the validity itself that the assertion that procedural and practical grounds for the non-Confidence resolution are illegal, the application for the suspension of the validity of the non-Confidence resolution does not meet the requirement of the suspension of the validity, and it does not affect the conclusion of whether the request for the suspension of the validity does not meet the requirements under Article 23

[1] Article 23 of the Administrative Litigation Act / [2] Article 15 (4) of the Local Education Autonomy Act, Articles 8 and 31 (2) of the Rules of the Seoul Metropolitan Education Council, Article 23 of the Administrative Litigation Act

[1] [2] Supreme Court Order 92Du14 dated Jun. 8, 1992 (Gong1992, 2153) 94Du36 dated Feb. 28, 1995 (Gong1995Sang, 1491) Supreme Court Order 95Du22 dated Jun. 7, 1995 (Gong1991Ha, 2592), Supreme Court Order 95Du53 dated Nov. 23, 1995 (Gong196Sang, 93)

[Judgment of the court below]

Seoul Metropolitan Government Board of Education (Seo Law Firm, Attorneys Park Jong-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Order 96Nu1591 dated December 6, 1996

The reappeal is dismissed.

The grounds for reappeal of the re-appellant and the re-appellant are examined together.

In the case of applying for suspension of the validity of an administrative disposition or suspension of execution, the validity of an administrative disposition itself should not be determined, in principle, through a deliberation in the judgment on the merits, and the validity of the administrative disposition itself should not be determined in light of the purpose of the system, and only the existence of the requirements prescribed in Article 23(2) and (3) of the Administrative Litigation Act with respect to whether to suspend the validity or execution of the administrative disposition (see, e.g., Supreme Court Order 95Du22, Jun. 7, 1995; Order 95Du53, Nov. 23, 1995; etc.). However, the suspension of its validity or suspension of execution aims to prevent the applicant from getting a favorable judgment of the same time until the applicant receives a favorable judgment in the case on the merits. Thus, recognizing the validity of the disposition or the suspension of execution without the possibility of revocation in the lawsuit on the merits is contrary to the purport of the system, and it should also include the requirements of suspension of its validity or suspension of execution.

Article 8 of the Rules of the Seoul Metropolitan Government Board of Education (hereinafter referred to as the "Rules of the Meeting") enacted on the basis of Article 15 (4) of the Local Education Autonomy Act shall be prepared and distributed to the members in advance the agenda stating the date, time, place, and order of the meeting (Paragraph 1). In such cases, the Committee may change the agenda referred to in paragraph 1 by resolution or add other agenda. In such cases, the Committee shall do so under the joint signature of at least 1/5 of the incumbent members, and it shall be decided (Paragraph 2) by omission of debate and its decision only. Article 28 of the Rules of the Meeting shall be decided by the chairperson (Paragraph 1), and it shall be decided by the resolution of the Committee's non-Confidence proposal or secret ballot without the consent of all the incumbent members (Paragraph 2). Article 31 (2) of the Rules of the Meeting provides that no non-Confidence proposal for the resolution of the Committee's meeting shall be adopted for the purpose of non-Confidence in writing.

In addition, as the court below duly admitted, at the 56th extraordinary session of January 29, 1996 ( obvious that it is a clerical error in the court below's order), the recommendation to suspend the execution of the portion of the revised amount among the special account budget for educational expenses of 96 was passed as a whole, but the re-appellant did not transfer it to the superintendent of education on the ground that it is illegal decision. In addition, at the 61th extraordinary session of May 7, 1996, the re-appellant submitted the non-Confidence agreement to the re-appellant on the ground of the above illegal fact with the joint signature of 13 educational members, but the re-appellant did not arbitrarily submit it as an agenda for non-Confidence under Article 49 (1) of the Local Autonomy Act, on the ground that it does not constitute a non-Confidence reason as provided for in Article 49 (1) of the Local Autonomy Act, there is no reason to assert that there is a substantial illegal reason in the non-Confidence resolution of this case.

As above, as long as the application of this case does not meet the requirements of suspension of validity under Article 23 (2) and (3) of the Administrative Litigation Act, even in the case of suspension of validity itself, it is not clear whether the application of this case satisfies the requirements under Article 23 (3) of the Administrative Litigation Act.

In the same purport, the order of the court below that dismissed the re-appellant's application of this case is just, and there are no errors as alleged.

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-hun (Presiding Justice)