행정소송상 가처분 재판의 개관 및 그 동향 — 당사자소송을 본안으로 하는 가처분의 실무를 중심으로 —

The Administrative Litigation Act only stipulates the suspension of execution in the form of a provisional lawsuit prior to the main lawsuit, specifically for appeals suit related to revocation suit and suit seeking confirmation of nullity, without providing explicit provisions for other types of lawsuits. As a result, there has been controversy over whether provisional dispositions can be allowed in administrative lawsuits, aside from the suspension of execution. According to case law, provisional disposition is permitted in party suit and as a result, provisional disposition is being utilized in administrative litigation practice. Although the number of party suit is still relatively small, the trend toward a modern administrative state is gradually expanding the scope of party suit, and therefore, the number of provisional disposition cases related to these lawsuits is expected to increase. Furthermore, provisional disposition may become a significant topic in future revisions of the Administrative Litigation Act and the Administrative Litigation Rules. Against this backdrop, this study examined whether provisional injunctions can be granted in each type of administrative litigation. We examine the jurisdiction, subject matter, and respondent eligibility that must be considered when reviewing provisional injunction cases in administrative litigation, and identify potential issues that could arise in practice. It also explores the particularities of provisional disposition cases in administrative litigations, reviewing procedural issues such as jurisdiction, standing and the eligibility of respondents that need to be considered before proceeding to the main trials. Additionally, the study investigates the meaning of the right to be preserved and the necessity of preservation, which are required for the main trials of provisional disposition, as well as the characteristics of administrative litigation. The paper also considers the factors that may arise in the decision on provisional disposition applications and potential issues in appeal procedures. Lastly, the study categorizes recent lower court cases where provisional disposition cases in party suits were judged, and discusses key takeaways for specific types of provisional disposition cases that require particular attention.