行政訴訟에서 假處分 規定의 準用 - 대상결정: 대법원 1980. 12. 22.자 80두5 결정, 대법원 2015. 8. 21.자 2015무26 결정 -

Abstract

Article 23.2 of the Administrative Litigation Act applies to appeal litigation. Hence, regarding such appeals, provisions regarding provisional dispositions under the Civil Execution Act do not apply, and in party litigations, suspension of execution does not apply. Thus, it is the court’s view that provisions regarding provisional dispositions under the Civil Execution Act apply for party litigations according to Article 8.2 of the Administrative Litigation Act. In other words, depending on whether provisions for suspension of executions exist or not, injunction provisions under the Civil Execution Act do not apply in appeal litigations, but do apply to party litigations. This interpretation is believed to be influenced by Japanese administrative litigation laws. But the Japanese perceive temporary injunctions in administrative litigation as administrative acts, rather than judicial acts, according to their traditional views of superiority of its administrative bodies over the judiciary. On such understanding, Japan’s administrative litigation laws have a system of allowing for opposition by the Prime Minister, in which the executive's judgment overrides the judgment of the judiciary in the suspension of execution. Also, injunctions that hinder the exercise of public power may be excluded. But in Korea, unlike Japan, when the Administrative Litigation Act was enacted, it attempted to compensate for the vacancy of temporary injunctions in administrative litigation by applying the provisions of provisional disposition in the Civil Execution Act. Hence, the Court taking the view above ignores the differences of legislative intent and differences in regulation between the legislative and administrative laws of Japan and Korea in relation to temporary injunctions. On the other hand, if interpreted according to precedents, a gap will remain open for temporary injunctions in appeal litigations. This interpretation contradicts the demand for effective protection of rights derived from the right to trial of Article 27 of the Constitution. Hence a transition based on Constitutional values are necessary.