[1] Whether the suspension of validity or suspension of execution of an application case seeking suspension of the validity of an administrative disposition or suspension of execution is a requirement for suspension of the validity or suspension of execution, even by the application case itself, it is not clear that the applicant's claim on the merits does not

[2] 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 there is an urgent need to prevent irrecoverable damage caused by the disposition, etc. or by the enforcement or the continuation of procedure

[3] The meaning of "constition to have a significant impact on the public welfare" as a ground for suspending the execution under Article 23 (3) of the Administrative Litigation Act, and the location of the party who is responsible for asserting and indicating the above (=administrative agency)

[1] Article 23 of the Administrative Litigation Act / [2] Article 23 (2) of the Administrative Litigation Act / [3] Article 23 (3) of the Administrative Litigation Act, Article 202 of the Civil Procedure Act, Articles 8 (2) and 26 of the Administrative Litigation Act

[1] Supreme Court Order 92Du14 delivered on June 8, 1992 (Gong1992, 2153) 94Du36 delivered on February 28, 1995 (Gong1995Sang, 1491) 9Du39 delivered on November 26, 199 (Gong200Sang, 192) / [2] Supreme Court Order 86Du5 delivered on March 21, 1986 (Gong1986, 791) 95Du22 delivered on June 7, 1995 (Gong1995Ha, 2592), Supreme Court Order 9Du9399 delivered on November 23, 1995 (Supreme Court Order 9Du9497 delivered on June 29, 194) 209.

Dong Passenger Co., Ltd. (Law Firm International Law, Attorneys Kim Tae-soo et al., Counsel for the defendant-appellant)

Head of Busan Metropolitan City

An unlimited partnership bus (Law Firm Squa, Attorneys Park Han-soo et al., Counsel for the plaintiff-appellant)

Busan High Court Order 2003Ra27 dated December 20, 2003

The reappeal is dismissed.

1. The suspension or suspension of the execution of an administrative disposition is intended to protect the applicant’s status until the applicant obtains a favorable judgment in the case on the merits of the case, and to prevent the applicant from rendering a false judgment in favor of him/her at the same time. Thus, recognizing the validity or suspension of execution even though there is no possibility of revocation of the disposition in the lawsuit on the merits of the case on the merits is contrary to the purport of the system, and thus, it is not clear that the applicant’s claim on the merits is not reasonable even by the suspension or suspension of execution itself (see Supreme Court Order 9Du3, Nov. 26, 1999; Order 9Du14, Jun. 8, 1992, etc.).

The court below acknowledged the facts as stated in its reasoning based on the supporting materials and the record, and found that the respondent's disposition to approve the alteration of the city bus transportation business plan (hereinafter "the disposition of this case") was conducted in accordance with the mediation decision of the Minister of Construction and Transportation, it cannot be deemed that the respondent had faithfully consulted with the provisions of Article 70 (1) of the Passenger Transport Service Act before the Respondent applied for mediation, and it can be deemed that the applicant applied for mediation of the increased number of the operating spaces at least by filing an application with the Minister of Construction and Transportation including the increased number of the operating spaces which was not at the time of the request for consultation with the Do governor, and that the applicant's financial status and advanced operation status of the applicant, the increase in the revenue of the applicant due to the disposition of this case, the situation of the applicant's future management status after the disposition of this case, and there is no obvious violation of the law as to the installation of the parking lot and the ground for re-determination of the plaintiff's right to re-determination before the extension of the flight route of this case.

In addition, the argument in the grounds of reappeal that the defect of the mediation decision by the Minister of Construction and Transportation, which forms the basis of the disposition of this case, is not succeeded to the disposition of this case, or the period for filing a revocation lawsuit, has expired, cannot be accepted, and all the Supreme Court decisions cited in the grounds of reappeal are inappropriate to be invoked in this case, unlike the case.

2. The "damage difficult to recover", which is a requirement for the suspension of execution, stipulated in Article 23 (2) of the Administrative Litigation Act, is a loss that cannot be compensated with money unless there are special circumstances. It refers to the type and intangible damage where the party against whom the administrative disposition was taken cannot withstanding to refer or where it is considerably difficult to refer to (see Supreme Court Order 86Du5, Mar. 21, 1986; 2003No2, Apr. 25, 2003; 2003Du203, Apr. 25, 2003). The issue of whether there is "emergency need to prevent damage that may be difficult to recover from recovery due to the nature and form of the disposition, the nature, content and degree of the damage caused by the other party to the disposition, methods of restitution, monetary compensation, and possibility of winning the claim as well as the possibility of winning the claim individually. It shall be determined by the Supreme Court's decision on the specific and abstract reasons for suspension of execution.

In light of the various circumstances revealed in the facts of recognition and the anticipated that a considerable date will be required for the deliberation of the claims on the merits, the court below maintained the first instance court's decision that received the application for the suspension of execution of the instant case, based on the determination that the suspension of execution of the instant disposition could be justified in light of the aforementioned legal principles and records, there is a concern that the applicant would have a serious impact on the passenger transport business itself due to the prolonged operation of the instant disposition, or serious managerial crisis due to the occurrence of considerable economic loss, and such damage constitutes a tangible and intangible loss which is considerably difficult to recover" under Article 23 (2) of the Administrative Litigation Act as it is a tangible and intangible loss that is referenced to the applicant, and there is no urgent need to suspend the execution of the instant disposition to prevent this, and further there is a concern that the suspension of execution of the instant disposition would have a serious impact on the public welfare. In light of the above legal principles and records, the judgment of the court below is justified, and there is no violation of law such as misunderstanding of facts, misunderstanding of facts, occurrence of damages difficult to recover.

The Supreme Court decisions cited in the grounds of reappeal are not appropriate to be invoked in the instant case, unlike the instant case.

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

Justices Yoon Jae-chul (Presiding Justice)