Summary
This chapter links the statutory requirement of an urgent need to prevent irreparable loss to concrete materials.
2.1The Standard by Which the Path Opens
The mere statement that harm exists does not explain why one cannot simply wait for a judgment. Applicant A has filed an action for revocation but fears that, if the enforcement of the disposition proceeds, restoration of the status quo ante before the judgment on the merits will become difficult. The starting point is the principle that the filing of an action for revocation does not affect the effect, enforcement, or continuation of procedures of the disposition. The question here is to what extent the disadvantage A will suffer must be confirmed before the door to a stay of enforcement, the exception to this principle, opens.
Administrative Litigation Act Article 23, paragraph (2) provides that "where it is recognized that there is an urgent need to prevent irreparable harm that would arise from the disposition, etc., or its enforcement or the continuation of procedures, in cases where an action for revocation has been filed," the court in which the case is pending on the merits may order a stay. Here the subject is the court in which the case is pending on the merits, the starting point of the judgment is the disposition, etc., or its enforcement or the continuation of procedures, and the requirement is the urgent need to prevent irreparable harm.
Reading this text together with the conclusion of this section, one can see that the existence of harm and the recoverability and urgency of the harm are distinct stages of judgment. The mere fact that harm has occurred does not satisfy the statutory requirement of irreparable harm; urgent necessity must also be demonstrated together with it. The entrance to this remedy opens when the necessary scope of the stay and the restriction on the public welfare are satisfied, the relief sought, the parties, and the conditions are specified in the claim for relief, and the right asserted by the chosen form of action can be defended.
The sharpest counterargument to this standard is that harm is difficult to prove before it materializes. Irreparable harm is often confirmed only after the judgment on the merits has been rendered, and a demand for proof at that point amounts in fact to refusing a stay. Along with this, the criticism follows that restricting a stay on grounds of the public interest leaves a party's irreparable harm unaddressed. Yet notwithstanding the difficulty this counterargument identifies, not every disadvantage can automatically be converted into satisfaction of irreparability and urgency.
In the scene above, the only fact necessary for the present judgment is that what A fears is the difficulty of restoring the status quo ante before the judgment on the merits due to the enforcement of the disposition. The nature of the harm, its urgency, materials concerning the public welfare, and whether a stay order has been issued are not confirmed in the record. If, for lack of materials, one cannot judge the recoverability of the harm or the external effect of the stay, the matter remains undetermined. Meanwhile, if the purpose can be achieved by staying only enforcement or the continuation of procedures, that narrows the option of staying the effect itself.
The conclusion this section permits is that the mere existence of harm does not itself result in a stay; only when irreparable harm and urgency are demonstrated, and the scope of the stay and the restriction on the public welfare are also in place, does the channel of this remedy open. Conversely, automatically substituting satisfaction of irreparability and urgency for every disadvantage, or immediately declaring a lack of materials to mean that no remedy is available, falls outside the scope of this section.
2.2The Conditions That Block Relief
Must a stay of enforcement be ordered whenever there is a disadvantage? It connects the statutory requirement of an urgent need to prevent irreparable harm with concrete materials. Unlike the principle established earlier, the question here changes. It is: when does the court close this path?
The provision corresponding to this question is Administrative Litigation Act Article 23, paragraph (2). Its text provides: "Where it is recognized that there is an urgent need to prevent irreparable harm that would arise from the disposition, etc., or its enforcement or the continuation of procedures, in cases where an action for revocation has been filed, the court in which the case is pending on the merits may, upon the application of a party or ex officio, order the whole or part of the effect of the disposition, etc., or its enforcement or the continuation of procedures to be stayed (hereinafter referred to as a 'stay of enforcement')." Here the subject is the court in which the case is pending on the merits, and the act is an order staying the whole or part (Administrative Litigation Act Article 23).
That text says that harm alone is insufficient. Only when an urgent need to prevent irreparable harm is recognized can the court order a stay. This judgment can be constituted only by distinguishing two concepts: the nature of harm that is difficult to reverse after the judgment on the merits, and the temporal urgency that this harm must be prevented now. Each of these must be demonstrated by its own materials, and if either one is missing, the channel of this remedy closes. In other words, if any one of the statutory requirements is not satisfied, one cannot reach a stay order.
Harm is difficult to prove before it materializes. Even so, not every disadvantage can automatically be converted into satisfaction of irreparability and urgency. The strongest counterargument aims at the point that, where a stay is restricted on the ground that it is feared to have a serious impact on the public welfare, the party's irreparable harm is left unaddressed. That loss is real and sometimes irreversible. Yet if a disadvantage for which irreparable harm and urgency have not been demonstrated is automatically converted into satisfaction of the two requirements, that counterargument removes the threshold of the statutory requirements. Where irreparable harm is not recognized, or where the stay is feared to have a serious impact on the public welfare, the channel of this remedy closes.
In the synthetic scene, Applicant A's concern is the possibility that, if the enforcement of the disposition proceeds, restoration of the status quo ante before the judgment on the merits will become difficult. This fact serves only as the starting point for materials concerning the nature and urgency of the harm, and does not itself demonstrate the two requirements. In the adjudication record, the disposition, the scheduled enforcement, the nature of the harm, urgency, public-welfare materials, and the stay order are designated. Where there are no materials by which to judge the recoverability of the harm or the external effect of the stay, that judgment remains undetermined. A lack of materials must not be read immediately as inability to grant relief.
The conclusion this section permits is narrow. The mere existence of a disadvantage does not itself produce a stay of enforcement; only where the urgent need to prevent irreparable harm is demonstrated does the door to a stay order open. If the stay is feared to have a serious impact on the public welfare, or if urgent irreparable harm is not recognized, the channel of this remedy closes. The judgment up to this point is the result of distinguishing the demonstration of irreparable harm from the choice of the scope of the stay.
2.3The Boundary That Remains When There Is No Data
That conclusion is the starting point of the question asking whether a stay of enforcement must be ordered whenever there is a disadvantage, and it is not re-argued here. The concern A raises in this scene concerns the irreversibility of the state that lies ahead, and whether the court can carry that concern over into a judgment on a stay requires a separate basis. Accordingly, the present question lies not in the presence or absence of disadvantage itself, but in what can specify the requirement of an urgent need to prevent irreparable harm.
Administrative Litigation Act Article 23 provides that, "where an action for revocation has been filed, if it is recognized that there is an urgent need to prevent irreparable harm arising from the disposition, etc., or its enforcement or the continuation of procedures, the court in which the case on the merits is pending may, upon the application of a party or ex officio, order a stay in whole or in part of the effect of the disposition, etc., or its enforcement or the continuation of procedures." This text limits the subject of the decision to the court in which the case is pending on the merits, the act to a stay order upon the application of a party or ex officio, and the object to the whole or part of the effect of the disposition, etc., or its enforcement or the continuation of procedures. The requirement is when the result of irreparable harm and the timing of an urgent need are both recognized, and here the need for a stay of enforcement means the need to urgently prevent irreparable harm.
The link joining this text with the earlier conclusion is materials. Only when materials concerning the nature of the harm, the scheduled enforcement of the disposition, urgency, and the impact a stay would have on the public welfare are specified in the record can recoverability and external effect be judged. Conversely, matters for which no such materials exist in the record, and as to which the grounds for judgment have not themselves been specified, differ from a state in which it has been determined that the harm is recoverable or that the stay is harmless. The author distinguishes the two, holding that the former is not declared impossible but remains undetermined. If the case in which a determination has been made that the statutory requirements are not satisfied and the case in which the basis for judgment itself is not fixed are handled as one bundle, confirmed facts and unconfirmed facts receive the same adjudication.
The counterargument begins from the difficulty of proving harm before it materializes. Interests such as human life or existence take a form that is difficult to reverse after the incident has occurred, and there are cases in which money after the fact cannot fill the original state. The point that restricting a stay on grounds of the public interest leaves such irreparable harm unaddressed also remains as it is. Yet the way to resolve the difficulty this counterargument identifies is not automatic approval. If such a conversion were permitted, the requirements of irreparable harm and urgent need would lose their distinction in the text, and undetermined matters would incline in the direction of always becoming grounds for a stay.
Contrasting this scene with the requirements, what A fears is that the restoration of the status quo ante before the judgment on the merits becomes difficult, and this overlaps with the nature of irreparable harm. However, this scene does not fix when the harm materializes, at what point urgency arises, or what impact the stay has on the public welfare. Since the scene alone cannot specify the materials for judging recoverability and external effect, those items are left undetermined. Conversely, the condition that if the purpose can be achieved by staying only enforcement or the continuation of procedures, the option of staying the effect itself is narrowed, remains as a test to be applied when determining the scope of the stay.
The conclusion this section permits is narrow. That a stay of an administrative act before judgment is permitted where irreparable harm and urgent need are demonstrated and the necessary scope of the stay and the restriction on the public welfare are satisfied, and that the path is blocked where urgent irreparable harm is not recognized or the stay is feared to have a serious impact on the public welfare, remain as they are. For the same reason, matters that cannot be judged for lack of materials are not written up by converting them into the latter's determination. Undetermined marks only a lack of materials, and the adjudication may change according to the direction in which the materials are filled.
2.4The Records Needed for Determination
What he worries about is not simple disadvantage, but the event that, while waiting for the judgment, the disadvantage hardens into a state that is later difficult to reverse. Then, what must be entered on the record in order to judge whether a stay of enforcement must be ordered whenever there is a disadvantage?
The text answering this question is in Administrative Litigation Act Article 23. Article 23, paragraph (2) provides: "Where it is recognized that there is an urgent need to prevent irreparable harm that would arise from the disposition, etc., or its enforcement or the continuation of procedures, in cases where an action for revocation has been filed, the court in which the case is pending on the merits may, upon the application of a party or ex officio, order the whole or part of the effect of the disposition, etc., or its enforcement or the continuation of procedures to be stayed (hereinafter referred to as a 'stay of enforcement')" (Administrative Litigation Act Article 23). The subject this text indicates is the court in which the case is pending on the merits, the act is the staying of the whole or part of the effect, enforcement, or continuation of procedures, and the condition is an urgent need to prevent irreparable harm.
The requirements this Article sets for being able to render a stay order are irreparable harm and the urgency of its prevention. Accordingly, the stage-by-stage judgment begins by examining what materials demonstrated these requirements. Here the need for a stay of enforcement means the need to urgently prevent irreparable harm. To fix the materials to be demonstrated, there are the content of the disposition, the enforcement proceeding or its schedule, the nature of the alleged harm, materials on urgency, materials on the impact a stay would have on the public welfare, and the materials recorded in the stay order. The stage judgment is made only on the fixed record, and absent records are not filled by presumption.
The reason this record boundary is burdensome is that harm is difficult to prove before it materializes. To gauge in advance the harm that enforcement not yet carried out will bring, a party must gather materials around an unconfirmed future. If a stay is blocked in the name of the public welfare, the reproach follows that harm that will become irreparable is left as it is. The existence of a disadvantage and whether that disadvantage is irreparable or must be urgently prevented are distinct judgments. The confirmed conclusion is that, absent irreparability and urgency demonstrated by materials, the requirements for a stay cannot be regarded as satisfied.
In the synthetic scene, only the fact that what A fears is the difficulty of restoring the status quo ante before the judgment on the merits is relevant to this question. Whether that concern has been organized into materials on the nature and urgency of the harm, and whether materials on the impact a stay would have on the public welfare have been placed alongside, cannot be known from the scene alone. The year, the amount, and the start date are not fixed either. Where the purpose can be achieved by staying only enforcement or the continuation of procedures, a stay of the effect itself is not permitted. This contrast is merely an assumption that changes the condition and not an additional fact, and the items that cannot be judged from the scene remain undetermined. Undetermined does not immediately mean that no remedy is available; it means the place where materials must be filled.
The conclusion this section permits is narrow. The mere statement that a disadvantage exists cannot be taken as satisfying the requirements for a stay; irreparable harm and urgency must be demonstrated by materials, and the stage is judged on what is recorded in the stay order, together with the materials on the scope of the stay and the public welfare. Beyond this, it is not permitted to fill the requirements by presumption despite an absence of materials, to carry the stage forward on facts outside the recorded materials, or to automatically convert every disadvantage into irreparability and urgency. This adjudication does not determine the continuation or modification after the stay order, what is stopped by an application or an appeal against a ruling, or whether the effect itself must be stayed.
2.5Circumstances That Change the Decision
As confirmed earlier, the principle is that the filing of an action for revocation does not affect the effect of the disposition, its enforcement, or the continuation of the procedure. Upon that principle, the question at hand is when A's concern leads to a decision to stay, and what change overturns an assessment already made at an earlier stage.
Article 23 of the Administrative Litigation Act provides: "(2) Where an action for revocation is filed and it is found that there is an urgent need in order to prevent irreparable harm arising from a disposition, or its enforcement, or the continuation of the procedure, the court in which the merits are pending may, upon the application of a party or ex officio (by the court's own authority), decide to suspend in whole or in part the effect of the disposition, or its enforcement, or the continuation of the procedure (hereinafter referred to as a 'stay of enforcement'). However, the suspension of the effect of a disposition shall not be permitted where the purpose can be achieved by suspending the enforcement of the disposition or the continuation of the procedure." This language locates the cause of the harm in the disposition, its enforcement, or the continuation of the procedure, and requires an urgent need to prevent that harm.
Accordingly, the existence of harm and the need for a stay of enforcement are distinct stages of judgment. Here, the need for a stay of enforcement means the need urgently to prevent irreparable harm, and is not a judgment establishing the unlawfulness of the disposition on the merits. In other words, a mere disadvantage does not satisfy the requirement of irreparable harm, and even where recovery is difficult, if there is no urgency, the need for prevention is not satisfied. Moreover, even where both requirements are established by prima facie proof, the stay is decided only to the extent necessary and only insofar as there is no risk of a serious impact on the public welfare.
The strongest counterargument is that, before harm has materialized, it is difficult to prove the harm, and it charges that if a stay is restricted on grounds of the public interest, the party's irreparable harm is left unaddressed. This counterargument has a valid point. Only after the harm has appeared does it become clear that it cannot be recovered afterward, and the harm suffered in the meantime remains as it is. Yet not every disadvantage can automatically be converted into difficulty of recovery or the satisfaction of urgency. That is precisely why materials are needed to establish the nature of the harm and its urgency. A lack of materials must not be read at once as an inability to afford relief, but neither should difficulty of recovery and urgency be treated as established merely by the name of disadvantage.
In the synthetic scene, A is concerned that the enforcement of the disposition will proceed, and the materials to be taken as the record are fixed as the disposition, the scheduled enforcement, the nature of the harm, urgency, public welfare materials, and the type of stay decision. Confronting these materials with the condition of the need urgently to prevent irreparable harm, how A's concern is established by prima facie proof in terms of the nature of the harm and its urgency becomes the axis of the assessment. However, since the scene fixes neither the specific content of the harm nor the degree of urgency, those parts remain undetermined. Where there are no materials by which to judge the recoverability of the harm or the external effect of a stay, the assessment is not concluded hastily but is left undetermined.
The conclusion permitted by this section is narrow. A disadvantage does not at once yield a stay of enforcement; the need urgently to prevent irreparable harm must be established by prima facie proof, and even then the scope of the stay is limited to what is necessary and subject to the constraint of the public welfare. Suspending the effect itself remains a choice reserved for cases in which the purpose cannot be achieved by suspending the enforcement or the procedure alone. By contrast, to assert that the existence of harm alone satisfies both difficulty of recovery and urgency is a conclusion that goes beyond the distinctions of this section.
2.6The Strongest Counterargument and the Answer
Immediately before this, it was confirmed that the filing of an action for revocation alone does not halt the effect of the disposition, its enforcement, or the continuation of the procedure. Whether A's application should be granted on the strength of this concern alone is the question at this stage.
Here, the decision-maker is the court in which the merits are pending, the object is the disposition or its enforcement or the continuation of the procedure, and the ground is an urgent need to prevent irreparable harm.
The reason this language requires an urgent need together with irreparable harm is that the two requirements are charged with different judgments. Irreparable harm addresses the nature of the harm, and urgency addresses the need to prevent that harm now. Either one alone is insufficient, and the author's conclusion also follows from this distinction. The mere fact that harm exists cannot be substituted for a judgment concerning the recoverability of the harm or the urgency of its prevention.
The strongest counterargument charges that restricting a stay on grounds of the public welfare leaves the party's irreparable harm unaddressed. Before harm materializes, it is difficult to prove the harm, and the risk that the restoration of the prior state becomes difficult while awaiting judgment is real. That harm falls squarely on A, whereas the public convenience is widely dispersed. If the difficulty of proof is made to stand in for the satisfaction of the requirements, the words 'urgent need' become an empty place.
The facts established in this scene are only Applicant A's filing of the action and the concern over the progress of enforcement; whether that concern shows the nature of the harm and its urgency to what degree remains to be judged on the materials. Which records, among the disposition, the scheduled enforcement, the nature of the harm, urgency, public welfare materials, and the stay decision, have been submitted is likewise not fixed by this scene alone. If the materials are insufficient, the state of being unable to judge the recoverability or the external effect of the stay remains. In that case the matter is left undetermined, and no conclusion of an inability to afford relief is drawn at once.
The conclusion permitted by this section does not stop at a mention that harm exists; it is the narrow judgment that a stay may be at issue when the urgent need to prevent irreparable harm is established by prima facie proof through concrete materials. What it does not permit is the judgment that the existence of a disadvantage alone automatically satisfies the requirements.
2.7The Link to the Application and the Dispositive Part
The preceding section received the conclusion that not every disadvantage can automatically be converted into difficulty of recovery and satisfaction of urgency. Whether A must wait until the judgment on the merits even after the disposition has entered the stage of enforcement, or whether the court may intervene before then, is the question here. In other words, should a stay of enforcement follow at once upon a disadvantage?
To this question, Article 23 of the Administrative Litigation Act answers directly in its text. This language limits the decision-maker to the court in which the merits are pending, and the act to the suspension, in whole or in part, of the effect of the disposition or of its enforcement or the continuation of the procedure. The conditions are the prevention of irreparable harm and the recognition of an urgent need, and the application is open through both routes of a party's application and ex officio (by the court's own authority).
The provision closes in the permissive mood, saying 'may decide.' This means that a stay is not mandated by the mere existence of a disadvantage, but that when the requirements of irreparable harm and urgency are recognized, the court may choose a stay. The reason the two must be distinguished is that each requirement calls for different facts. Irreparable harm asks about the nature of harm that even a judgment on the merits cannot restore to the prior state, while an urgent need asks about the urgency of preventing that harm in advance. The work of linking the statutory requirement of an urgent need to prevent irreparable harm to concrete materials is the procedure of comparing these two questions without omission.
The strongest counterargument is that, before harm materializes, it is difficult to prove. Enforcement is not yet complete and no judgment has been rendered, so a demand to specify concretely what will be lost and how amounts in effect to compelling prediction. Added to this is the criticism that restricting a stay on grounds of the public interest leaves the party's irreparable harm unaddressed. Both points are a real burden for those who suffer the disadvantage caused by a disposition. Yet the single fact that such a disadvantage exists does not itself establish irreparable harm and an urgent need. Even if the range of materials required for prima facie proof can be broadened, the result of erasing the requirements themselves must be avoided.
The judgment of this section fixes as the items to be confirmed from the record the disposition, the scheduled enforcement, the nature of the harm, urgency, public welfare materials, and the stay decision. In A's case, the fact of the filing of the action for revocation and the scene's fact that the enforcement of the disposition is in progress are established. However, how far the enforcement has advanced, what the nature of the harm is whose recovery is difficult, and what impact a stay will have on the public welfare are not fixed in the synthetic scene. Where there are no materials by which to judge the recoverability of the harm or the external effect of a stay, these parts remain undetermined. The condition that, where the purpose can be achieved by suspending the enforcement or the procedure alone, the choice of suspending the effect itself is narrowed likewise applies only within the range in which that condition holds.
The conclusion permitted by this section is narrow. It extends no further than that, where there is a risk that enforcement of the disposition will make the state prior to the judgment on the merits difficult to restore, and where the urgent need to prevent that harm is established by prima facie proof through concrete materials, the court may decide on a stay. From this it is not permissible to read that every disadvantage produces a stay, or that an application for a stay is dismissed merely because materials are not yet available. The statutory requirements of the prevention of irreparable harm and an urgent need operate at the stage of staying an administrative act before judgment, when they are satisfied together as to the necessary scope and the constraint of the public welfare.
2.8The Scope This Section Undertakes
To what range can harm that will come too late even if one prevails on the merits be stopped? Article 23, paragraph (2) of the Administrative Litigation Act provides that "where an action for revocation is filed and it is found that there is an urgent need in order to prevent irreparable harm arising from a disposition, or its enforcement, or the continuation of the procedure," the court may decide on a stay. This language requires irreparable harm and the urgency of its prevention together. The principle that the filing of an action for revocation does not affect the effect of the disposition, its enforcement, or the continuation of the procedure is carried over here as a premise.
The stay permitted by this provision extends to a suspension in whole or in part, but is limited by the proviso that "the suspension of the effect of a disposition shall not be permitted where the purpose can be achieved by suspending the enforcement of the disposition or the continuation of the procedure." The statutory requirement of an urgent need to prevent irreparable harm must be linked to concrete materials.
There is the counterargument that, before harm materializes, it is difficult to prove, and that restricting a stay on grounds of the public interest leaves the party's irreparable harm unaddressed. While leaving the unfavorable aspects of this counterargument intact, the satisfaction of the statutory requirements cannot be presumed merely because of the difficulty of proving the disadvantage.
The disposition, the scheduled enforcement, the nature of the harm, urgency, public welfare materials, and the stay decision form the record of judgment. In the range where there are no materials by which to judge recoverability or the external effect of a stay, the matter remains undetermined.
This section does not answer whether a stay of enforcement should follow at once upon a disadvantage; it addresses the range in which the statutory requirement of an urgent need to prevent irreparable harm is linked to concrete materials.
2.9Application of the Text of the Provisions and the Holdings of Precedents
The previous stage confirmed that the filing of an action for revocation alone does not halt the effect of the disposition, its enforcement, or the continuation of the procedure. On the question whether a stay of enforcement should follow at once upon a disadvantage, one must read precisely what the statutory requirements demand.
The relevant source text, Article 23, paragraph (2) of the Administrative Litigation Act, provides that "where an action for revocation is filed and it is found that there is an urgent need in order to prevent irreparable harm arising from a disposition, or its enforcement, or the continuation of the procedure, the court in which the merits are pending may, upon the application of a party or ex officio (by the court's own authority), decide to suspend in whole or in part the effect of the disposition, or its enforcement, or the continuation of the procedure (hereinafter referred to as a 'stay of enforcement')." In this language, the body that stays is the court in which the merits are pending, and the route of initiation is a party's application or ex officio (by the court's own authority). This is the range of the body and the act indicated by the language.
Linking this language with the conclusion of this section reveals that the requirement of an urgent need to prevent irreparable harm is at once the gateway of the assessment. The reason difficulty of recovery and urgency must be distinguished is that 'the existence of a disadvantage' and 'the need for prevention' demand different materials of judgment. Only the language of the relevant source text is used as the ground for assessing the staying of an administrative act before judgment. To reach beyond this range and draw upon the reasons of the judgment and the like is to add a judgment the language of the statutory requirement does not demand.
The most powerful counterargument starts from the difficulty of proving harm before it materializes. It targets the point that the requirement of irreparable harm demands of a party an impossible burden of proof, and that in the meantime irreparable harm is left unaddressed. That loss and inconvenience are not small. This answer does not erase the unfavorableness of the counterargument. Rather, it makes clear that the difficulty of prima facie proof is left standing, but that reducing that difficulty to the automatic satisfaction of the requirements runs contrary to the condition of the need for prevention fixed by the language.
Within the synthetic scene, the facts relevant to this question are that Applicant A filed an action for revocation and that A is concerned that, as the enforcement of the disposition proceeds, restoration of the state prior to the judgment on the merits will become difficult. Confronting this fact with the foregoing conditions yields the point of contention whether what A fears falls within the nature of 'irreparable harm.' However, what the scene sets is only the direction of the concern, not the content of the record such as the nature of the harm, urgency, or public welfare materials. Therefore, at present, when there are no materials by which to judge the recoverability of the harm or the external effect of a stay, difficulty of recovery or urgency cannot be established on this scene alone. Those matters remain undetermined.
What this section permits is judging, within the language of the relevant source text, the urgent need to prevent irreparable harm by linking it to concrete materials; what it does not permit is automatically treating every disadvantage as satisfying the requirements or expanding the language by way of the reasons of the judgment and the like.
2.10Fine Distinctions Within the Stage
이 우려를 근거로 삼을 때, 판결 전 행정작용의 정지 안에서 다시 나누어 판정할 부분은 무엇인가.
행정소송법 제23조는 “취소소송이 제기된 경우에 처분등이나 그 집행 또는 절차의 속행으로 인하여 생길 회복하기 어려운 손해를 예방하기 위하여 긴급한 필요가 있다고 인정할 때에는 본안이 계속되고 있는 법원은 당사자의 신청 또는 직권에 의하여 처분등의 효력이나 그 집행 또는 절차의 속행의 전부 또는 일부의 정지(이하 ‘집행정지’라 한다)를 결정할 수 있다.”고 정한다. 여기서 대상은 취소소송이 제기된 뒤의 처분등이며, 행위는 그 효력이나 집행, 절차 속행의 전부 또는 일부를 멈추는 결정이다. 판정 주체는 본안이 계속되고 있는 법원이고, 발동 경로는 당사자의 신청 또는 직권이다.
이 문언이 요구하는 것은 단순한 손해의 존재가 아니라, 처분등이나 집행·절차 속행으로 생길 회복하기 어려운 손해를 예방하기 위한 긴급한 필요다. 회복하기 어려운 손해와 긴급성이 함께 소명되고, 필요한 정지 범위와 공공복리 제한까지 충족한 경우에 정지가 허용되는 셈이다. 반대로 긴급한 회복곤란 손해가 인정되지 않거나, 정지가 공공복리에 중대한 영향을 미칠 우려가 있는 경우에는 정지가 막힌다. 손해의 회복 가능성이나 정지의 대외 영향을 판단할 자료가 없는 경우에는 미확정으로 남는다.
그러한 어려움은 공익을 이유로 정지를 제한할 때 회복 불가능한 손해가 그대로 방치될 수 있다는 점에서 구체적인 손실로 작용한다. 다만 손해의 현실화가 늦어진다는 사정만으로, 그 손해가 곧 회복하기 어려운 손해이며 긴급한 필요까지 충족한다고 단정할 수는 없다. 그 경계는 긴급한 회복곤란 손해가 인정되지 않거나 정지가 공공복리에 중대한 영향을 미칠 우려가 있는 경우, 그리고 판단 자료가 없어 회복 가능성이나 대외 영향이 확인되지 않는 경우에 그대로 남는다.
합성 장면에서 신청인 A가 우려하는 것은 처분의 집행이 진행되어 본안 판결 전 상태 회복이 어려워질 가능성이다. 그 우려가 회복하기 어려운 손해를 긴급히 예방할 필요라는 조건에 닿는지, 판정에는 처분·집행 예정·손해의 성질·긴급성·공공복리 자료·정지 결정의 종류가 자료로 쓰인다. 장면에 연도·금액·기산일은 지정되지 않았으므로 손해의 규모나 시점의 긴급성은 확정할 수 없다. 이에 따라 지정된 자료만으로 정지 요건의 충족 여부를 단정하지 않는다.
판결 전 정지 안에서 나누어 판정할 것은 손해를 회복하기 어렵고 긴급한 예방 필요가 소명된 경우, 그에 필요한 정지 범위가 공공복리 제한을 넘지 않는 경우, 긴급한 회복곤란 손해가 인정되지 않거나 공공복리에 중대한 영향이 우려되는 경우, 그리고 판단 자료가 없어 회복 가능성이나 대외 영향이 확인되지 않는 경우의 네 경계다. 여기서 불이익이 있었다는 사실만으로 정지가 허용된다고 확정할 수 없다.
2.11Synthesis of Effectiveness, Blockage, and Undetermination
앞 절이 밝힌 대로 집행정지의 필요는 회복하기 어려운 손해를 긴급히 예방할 필요를 뜻한다. 지금 놓인 물음은 이렇다.
해당 문언은 행정소송법 제23조에 있다. 그 제23조 제2항은 “취소소송이 제기된 경우에 처분등이나 그 집행 또는 절차의 속행으로 인하여 생길 회복하기 어려운 손해를 예방하기 위하여 긴급한 필요가 있다고 인정할 때에는 본안이 계속되고 있는 법원은 당사자의 신청 또는 직권에 의하여 처분등의 효력이나 그 집행 또는 절차의 속행의 전부 또는 일부의 정지(이하 ‘집행정지’라 한다)를 결정할 수 있다”고 정한다(행정소송법 제23조). 이 문언은 주체를 본안이 계속되고 있는 법원으로, 행위를 처분등의 효력이나 그 집행 또는 절차의 속행의 전부 또는 일부의 정지로, 조건을 회복하기 어려운 손해를 예방할 긴급한 필요에 대한 인정으로 정한다.
문언이 요구하는 회복하기 어려운 손해와 긴급한 필요는 각각의 기능을 가진다. 회복하기 어려운 손해는 판결을 기다린 뒤에는 늦어질 불이익을 가리키고, 긴급성은 그 예방을 본안 판결 전으로 당겨야 할 필요를 가리킨다. 그래서 두 요건이 함께 소명되고 필요한 정지 범위 및 공공복리 제한을 충족한 경우에 정지는 작동한다(행정소송법 제23조). 이와 달리 긴급한 회복곤란 손해가 인정되지 않거나 정지가 공공복리에 중대한 영향을 미칠 우려가 있는 경우에는 막힌다. 물론 같은 항의 단서는 “처분의 효력정지는 처분등의 집행 또는 절차의 속행을 정지함으로써 목적을 달성할 수 있는 경우에는 허용되지 아니한다”고 덧붙이고, 집행 또는 절차 정지만으로 목적을 달성하면 효력 자체 정지라는 선택을 좁힌다(행정소송법 제23조).
집행이 진행되기를 기다려 손해를 확정한 뒤 신청하면 때를 놓치고, 그전에 신청하면 아직 생기지 않은 손해를 자료로 보여 주어야 한다는 것이다. 거기에는 회복 불가능한 손해를 공익의 이름으로 방치하면 안 된다는 절실함이 함께 놓인다. 이 어려움에도 모든 불이익을 자동으로 회복곤란·긴급성 충족으로 바꿀 수는 없다. 문언이 요구하는 회복하기 어려운 손해와 긴급한 필요라는 요건을 생략하면, 긴급한 회복곤란 손해가 인정되지 않는 경우에 막혀야 할 정지까지 열리게 된다.
합성 장면에서 A가 우려하는 처분의 집행과 본안 판결 전의 상태 회복 곤란은 회복하기 어려운 손해와 긴급성의 소명을 요구하는 방향의 사실이다(행정소송법 제23조). 다만 장면에는 손해의 성질·긴급성·공공복리에 관한 자료로 무엇이 놓여 있는지 정해져 있지 않다. 여기서 미확정이란 작동과 차단 가운데 어느 쪽인지 정할 수 없다는 뜻이지, 구제가 불가능하다는 뜻이 아니다.
이 절이 허용하는 것은 회복하기 어려운 손해와 긴급성이 소명되고 필요한 정지 범위 및 공공복리 제한을 충족한 경우의 작동이고, 긴급한 회복곤란 손해가 인정되지 않거나 정지가 공공복리에 중대한 영향을 미칠 우려가 있는 경우의 차단이다. 여기서 허용되지 않는 것은 어떤 불이익이 있었다는 사실 하나로 곧 정지가 결정된다는 해석이다. 미확정 상태는 자료가 갖추어질 때까지의 경계로 남는다.
2.12Conclusion Carried Over to the Next Section
이 우려를 실제 손해의 성격과 시급함으로 설명할 수 있는지가 이번 물음이다. 장면의 우려만으로는 왜 판결을 기다릴 수 없는지의 이유가 채워지지 않는다.
이 물음에 대한 법정 기준은 「행정소송법」 제23조에 있다. 제2항은 “②취소소송이 제기된 경우에 처분등이나 그 집행 또는 절차의 속행으로 인하여 생길 회복하기 어려운 손해를 예방하기 위하여 긴급한 필요가 있다고 인정할 때에는 본안이 계속되고 있는 법원은 당사자의 신청 또는 직권에 의하여 처분등의 효력이나 그 집행 또는 절차의 속행의 전부 또는 일부의 정지(이하 “집행정지”라 한다)를 결정할 수 있다.”고 정한다 (행정소송법 제23조). 여기서 회복하기 어려운 손해란 본안 판결 뒤에 그 손해를 되돌리기 어려운 상태를 가리키고, 긴급한 필요는 그 손해를 예방해야 할 시급한 사정을 뜻한다. 손해와 긴급성 두 요건은 나란히 소명되어야 한다.
법원은 이 두 요건이 소명되면 효력이나 집행 또는 절차 속행의 전부 또는 일부 정지를 결정할 수 있다 (행정소송법 제23조). 다만 동항은 “다만, 처분의 효력정지는 처분등의 집행 또는 절차의 속행을 정지함으로써 목적을 달성할 수 있는 경우에는 허용되지 아니한다.”고 단서를 둔다 (행정소송법 제23조). 이 단서는 손해와 긴급성 판단과는 별도의 선택 범위 판단이다. 앞 두 요건은 정지 필요성을 가르고, 단서는 정지의 대상을 어디까지 좁힐지를 정한다. 손해의 회복 가능성과 시급성은 기록으로 소명되고, 그 소명이 설 때 정지라는 법적 통로가 열리며, 그 통로의 범위는 효력 자체보다 집행·절차 정지로 목적을 달성할 수 있는지에 따라 정해진다.
이 반론은 증명 시점의 문제를 겨냥한다. 손해가 아직 현실화되지 않았다면 그 성격과 돌이킬 수 없는지를 소명할 자료가 부족할 수 있고, 이 부족이 정지 불허로 이어지면 당사자의 회복 불가능한 손해가 방치된다. 그러나 이 어려움에도 불구하고 모든 불이익을 자동으로 회복곤란·긴급성 충족으로 바꿀 수는 없다. 자료가 부족한 상태는 손해의 회복 가능성과 정지의 대외 영향을 판단할 자료가 없는 경우이므로 미확정이며, 회복곤란·긴급성이 갖추어지지 않은 상태로 확정되는 것은 아니다. 반론이 지적한 불리함은 그대로 두고, 요건의 자동 충족은 배제한다.
합성 장면에서 신청인 A는 처분의 집행이 진행되어 본안 판결 전 상태 회복이 어려워질 것을 우려한다. 이 우려는 회복하기 어려운 손해를 예방할 필요가 있다는 판단과 관련된 사실이다. 그러나 장면에서는 어떤 처분인지, 어떤 집행이 예정되어 있는지, 손해의 성격이 무엇인지, 왜 긴급한지를 구체적으로 정하지 않았다. 판단에 필요한 기록은 처분·집행 예정·손해의 성질·긴급성·공공복리 자료·정지 결정의 종류이다. 이 조건은 장면이 아니라 판정 조건을 바꾸어 본 가정에 불과하며, 장면으로 정지 여부와 범위를 확정할 수 없다.
이 절은 불이익이 있다고 곧 정지되는 것은 아니며, 회복하기 어려운 손해와 긴급한 필요가 소명되어야 정지라는 법적 통로가 열리는 경계를 정한다. 같은 소명으로도 정지 범위는 효력 자체가 아니라 집행 또는 절차 정지로 목적을 달성할 수 있는 범위에 묶인다. 자료가 부족한 경우 미확정이며, 곧 구제 불능이 되는 것은 아니다. 다음 물음은 이 경계를 넘어 정지할 대상을 어디까지 좁힐지에 관한 것이다. 항상 처분의 효력 자체를 정지해야 하는가?