[1] Whether the application for suspension of the validity of an administrative disposition or the application for suspension of the execution itself should include the requirements for suspension of execution that the applicant’s main claim should be legitimate (affirmative)

[2] The meaning of an administrative disposition subject to an administrative litigation

[3] The case holding that the order of the court below, which received the above application, erred in the misapprehension of legal principle as to the requirements for suspension of execution, in case where Gap filed an administrative lawsuit seeking confirmation or revocation of a disciplinary measure against the illegality of a disposition restricting qualification for participation in bidding against Gap, and Gap filed an application for suspension of the disciplinary measure

[1] In a case of application seeking suspension of the validity of an administrative disposition or suspension of execution, the legality of the administrative disposition itself is not, in principle, subject to determination, and only the existence or absence of the requirements under Article 23(2) of the Administrative Litigation Act concerning whether to suspend the effect or execution of the administrative disposition is subject to determination. However, in light of the fact that suspension of execution is an exception to the principle of suspension of execution of an administrative disposition, and that it is a means of protection of rights premised on the possibility of winning the plaintiff in this case, it is reasonable to include that the applicant's request for suspension of execution itself must be legitimate.

[2] An administrative disposition subject to an administrative litigation refers to an act under public law in which an administrative agency, its affiliated agency, or a public institution delegated or entrusted with administrative authority under the statutes exercises public authority on matters related to the rights and obligations of the people, and even if it is an act limiting the rights of the other party, it cannot be deemed an administrative disposition unless it is an act of an administrative agency, its affiliated agency,

[3] The case holding that the order of the court below which accepted the application is erroneous in the misapprehension of legal principle as to the suspension of execution, on the ground that, in case where the disposition of unjust restriction against Gap's qualification for participation in bidding was defective, and where Gap filed an application for the suspension of a disciplinary measure while seeking the confirmation or revocation of a disciplinary measure, and Gap filed an application for the suspension of a disciplinary measure, since the above disciplinary measure does not fall under an administrative agency under the Administrative Litigation Act or its affiliated agency, or a public agency entrusted with the authority to impose a disciplinary measure by it, since the above disciplinary measure which was taken by the "Waste Site Management Corporation" is not an administrative disposition subject to administrative litigation, but a notification that Gap would not participate in the tender

[1] Article 23 of the Administrative Litigation Act / [2] Article 2 (1) 1 of the Administrative Litigation Act / [3] Article 2 (1) 1 of the Administrative Litigation Act, Article 23 of the Administrative Litigation Act

[1] [2] Supreme Court Order 94Du36 dated February 28, 1995 (Gong1995Sang, 1491) / [2] Supreme Court Decision 98Du14822 Decided February 9, 199

Applicant Corporation

[Judgment of the court below] The grounds for appeal are examined.

Seoul High Court Order 2010Ra229 dated August 19, 2010

The order of the court below shall be reversed and the decision of the first instance shall be revoked. The applicant's application for suspension of validity of this case shall be dismissed

The grounds of reappeal are examined.

1. In case of an application seeking suspension of the validity of an administrative disposition or suspension of execution, the validity of the administrative disposition itself is not, in principle, not subject to determination, and only the existence or absence of the requirements under Article 23(2) of the Administrative Litigation Act concerning whether to suspend the effect or execution of the administrative disposition is subject to determination. However, in light of the fact that the suspension of execution is recognized as an exception to the principle of suspension of execution of an administrative disposition, and that it is a means of protection of rights premised on the possibility of winning the plaintiff in this case, it is reasonable to include the requirements for suspension of execution that the applicant's request for suspension of execution itself should be legitimate (see Supreme Court Order 94Du36, Feb. 28, 1995).

On the other hand, an administrative disposition subject to an administrative litigation refers to an act under public law, which is conducted by an administrative agency, its affiliated agency, or a public institution delegated or entrusted with administrative authority under the laws and regulations, to exercise public authority on matters related to the rights and obligations of the people, and even if it is an act limiting the rights of the other party, it cannot be deemed an administrative disposition unless it is an act of an administrative agency, its affiliated agency, or a public institution delegated with authority (see Supreme Court Order 94Du36, Feb. 9, 199; Supreme Court Decision 98Du

2. A. According to the record, on June 25, 2010, the re-appellant applied for the suspension of the suspension of the instant sanctions against the re-appellant on the ground that the re-appellant applied for the suspension of the validity of the instant sanctions against the re-appellant on the ground that the re-appellant was likely to cause irreparable damage due to the execution of the instant sanctions, and that there is no data to be deemed to have any other urgent reason, and there is no other possibility of having a significant impact on public welfare, and that the court below maintained the first instance court’s decision.

B. However, according to relevant Acts and subordinate statutes and records, the re-appellant is a public institution (corporation) established under the Act on the Establishment and Management of Reclaimed Site Management Corporation under Article 5 (4) of the Act on the Management of Public Institutions, and is merely a "other public institution" under Article 5 (4) of the Act on the Management of Public Institutions, and cannot take measures to restrict participation in bidding pursuant to Article 39 of the same Act, and it is evident that the representative of the re-appellant does not constitute a "head of each central government agency" who can impose restrictions on participation in bidding

Therefore, the re-appellant is not an administrative agency or its affiliated agency prescribed by the Administrative Litigation Act, or a public agency entrusted with the authority of the disciplinary measure of this case. Thus, the disposition of this case filed by the re-appellant is not an administrative disposition subject to administrative litigation, but merely an act of notification with the judicial effect that the applicant would not participate in the bidding conducted by the re-appellant. Therefore, the re-appellant's notification that the applicant notified it cannot be deemed to have the effect of restricting the qualification to participate in all bidding conducted by the State under Article 27 (1) of the Act on Contracts to Which the State is a Party. Thus, the application for suspension of validity of this case filed by the applicant against the re

C. Nevertheless, the order of the court below that maintained the decision of the court of first instance, which was accepted by the applicant's application for the suspension of validity of this case, is erroneous in the misunderstanding of legal principles as to the requirements for suspension of execution under Article 23 of the Administrative Litigation Act, which affected the conclusion of the decision. The Re-Appellant's assertion

3. Therefore, the order of the court below shall be reversed, but since this case is deemed to be sufficient to directly judge this court, the court of first instance shall cancel the decision and dismiss the applicant’s application for the suspension of validity of this case. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)