행정소송에 있어서 집행정지제도의 현황 및 개선방안에 관한 고찰

The main purpose of the lawsuit system is remedy for violation of private right, and in order to promote the efficiency of this system, provisional remedies should be well prepared. The main means of provisional remedies in the administrative litigation act is the suspension of execution. However, current system formulated in 1984 has many problems. In 2000s, several attempts have been made for amendments of the administrative litigation act, but it has not succeeded in legalization. On this aspect, it will be meaningful to go over some supplementary devices for current system of suspension of execution. Firstly, the administrative litigation act states 'the damage which is irrecoverable' as the affirmative condition of suspension of execution, but there are some criticisms that it is too strict. Therefore, it is preferable to change ‘the damage which is irrecoverable’ to ‘an important damage.’ Also, it should be provided that when ‘the original case is clearly without reason’ the suspension of execution cannot be rendered. Secondly, in case of the administrative action effective on the third person, it is needed to introduce the system of providing security in suspension of execution to prevent violating the opposite side’s rights from it. Thirdly, current law is problematic because it does not have any provisions regarding the duration of effect of suspension of execution. Therefore, it is necessary to provide the duration of effect of suspension of execution in the administrative litigation law. Lastly, in case of the administrative action effective on the third person, the means of protecting the opposite side’s right needs to be supplemented. The suspension of execution with the condition of providing security can be an important protection device for the opposite side. Also, the right to immediate appeal against the suspension of execution or demand of withdrawal of the suspension of execution from the opposite side is required.