Summary
Where there is a serious effect on public welfare or the grounds for the stay have ceased to exist, the path to revoking the stay opens.
6.1The Standard by Which the Path Opens
Protection that awaits a judgment must be asked again once the reason for it has disappeared. Applicant A has brought an action for revocation but fears that, as execution of the disposition proceeds, restoration of the state prior to the judgment on the merits will become difficult. The preceding section distinguished the showing of reasons for the application from the non-suspending effect of an immediate appeal against a ruling on a stay order. The question treated in this section is whether a stay order, once it becomes final, is maintained to the very end. That is, the issue is whether the state of a stay that has already become final continues unchanged until the judgment on the merits, or whether it may be reviewed again in the meantime.
Article 24 of the Administrative Litigation Act provides: "Where, after a decision to suspend execution has become final, the suspension of execution has a serious impact on the public welfare, or the grounds for the suspension cease to exist, the court may, by decision, revoke the decision to suspend execution, upon the application of a party or ex officio." In this wording, the subject is the court, the act is the revocation of a final decision to suspend execution upon the application of a party or ex officio, and the condition is a serious impact on the public welfare or the disappearance of the grounds for the suspension. The provision itself thus directly shows that the decision remains open even after it becomes final.
The wording of this provision and the conclusion of this section interlock with one another. Where irreparable harm and urgency are shown and the necessary scope of the stay and the limitation on the public welfare are satisfied, this relief operates. Here, the showing of reasons for the application and the revocation of the stay are distinct stages of judgment. The former is the judgment that opens the preservative state; the latter is the judgment that asks whether that state has lost its reason to be maintained any longer. If these two stages are not separated, one is led to misunderstand the state after finality as permanently fixed on the strength of the initial showing alone.
If the state changes frequently, it is difficult for the parties to predict what will happen. For a party who has acted on the premise, relying on the stay order, that execution of the disposition will cease, the prospect of renewed review in the meantime means instability of plan. If the stay is limited on grounds of serious impact on the public welfare, the criticism also remains that irreparable harm is left unaddressed. Even so, the finality of a stay cannot be converted into unconditional maintenance until the finality of the merits. Once circumstances have changed, continuing to compel the preservative state on the strength of the initial judgment alone falls outside the conditions of this relief.
In this section, revocation of the stay means a decision that ends the preservative state by reason of a statutory change of circumstances. Where the condition—namely, that irreparable harm and urgency are shown and that the necessary scope of the stay and the limitation on the public welfare are satisfied—is met, this relief operates. However, where there are no materials with which to judge the recoverability of harm or the external effect of the stay—that is, where there are no materials with which to gauge the degree of recoverability or the degree of impact on the public welfare—the judgment remains undetermined. To judge revocation of the stay, materials concerning the disposition, planned execution, the nature of the harm, urgency, public welfare materials, and materials concerning the stay order are required, but in this scene it cannot be determined whether such materials exist.
The finality of a stay order has only opened the preservative state; it does not mean unconditional maintenance until the judgment on the merits. Where irreparable harm and urgency are shown and the necessary scope of the stay and the limitation on the public welfare are satisfied, this relief operates, and a judgment that goes beyond those conditions is not permitted by this section. Conversely, one cannot assert flatly that the relief is barred merely because materials are absent.
6.2The Conditions That Block Relief
Having distinguished the showing of reasons for the application from the non-suspending effect of an immediate appeal against a ruling on a stay order, the question that remains is whether that protection continues even after the stay order has become final. What conditions would bring the final preservative state to an end in the meantime is the scope this material covers.
This wording provides for revocation of the stay—that is, a decision that ends the preservative state by reason of a statutory change of circumstances. The grounds for revocation narrow to two. One is the case where the suspension of execution has a serious impact on the public welfare; the other is the case where the grounds for the suspension have ceased to exist. Application and ex officio alike are merely the routes to that decision.
The reason these grounds open the way to revocation of the stay is that it is not regarded as the case that the preservative state becomes permanently fixed merely because the stay order has become final. That is to say, when a statutory change of circumstances occurs, a stay order that has become final once again becomes the subject of a decision. Hence the two stages of judgment must be distinguished. The judgment that decides whether to grant a stay by examining the showing of reasons for the application at the earlier stage, and the judgment that decides whether to end the stay by examining the change of circumstances after finality, differ in their object and timing. This distinction, too, does not overlap with the non-suspending effect of an immediate appeal against a ruling.
If the state of the stay comes to an end in the meantime, inconvenience arises for the party who, trusting in a decision that has already become final, expected execution of the disposition to be suspended: predictability is shaken. One may worry that the protection put in place to prevent irreparable harm is rendered useless before a change of circumstances that ends that very protection. Yet even so, the finality of the stay cannot be converted into unconditional maintenance until the finality of the merits. Where a statutory change of circumstances occurs—serious impact on the public welfare or disappearance of the grounds for the stay—the way to revocation of the stay is regarded as open. The inconvenience pointed out by the counterargument remains, but that inconvenience alone is not a state on which unconditional maintenance can be erected.
In this scene, what Applicant A fears is that execution of the disposition will proceed and that restoration of the state prior to the judgment on the merits will become difficult. This is a circumstance of the earlier stage, where irreparable harm and urgency are at issue, and it occupies a different place from the change of circumstances after finality that this question treats. The scene contains no materials concerning the impact on the public welfare after the stay order became final or the disappearance of the grounds for the stay. Accordingly, on this scene alone it cannot be adjudged whether grounds for revocation of the stay have arisen or whether it is maintained as is. Because there are no materials with which to judge the recoverability of harm or the external effect of the stay, the matter remains undetermined. The condition that the option of suspending the effect itself is narrowed when the purpose can be achieved by suspension of execution or of procedure alone belongs to the question of choice at the earlier stage and does not substitute for the question of maintenance after finality.
The conclusion this material permits is that a stay order does not remain maintained to the very end merely because it has become final, and that where a statutory change of circumstances occurs—serious impact on the public welfare or disappearance of the grounds for the stay—the way to revocation of the stay opens. The conclusion it does not permit is the attitude of holding that, on the strength of finality alone, it is maintained unconditionally until the finality of the merits. Nor can the meaning of the disappearance of the grounds for the stay, or the degree of impact on the public welfare, be newly defined more broadly than the standard this material has set. Nor can the establishment of grounds for revocation be confirmed on the basis of facts absent from the scene.
6.3The Boundary That Remains When There Is No Data
The conclusion of the preceding stage of analysis carries over only in one line: to distinguish the showing of reasons for the application from the non-suspending effect of an immediate appeal against a ruling on a stay order. Now the question is whether this preservative state continues unchanged even after it becomes final, and how far one may assert when there are no materials with which to judge its end. Does a stay order, once final, remain maintained to the very end?
The wording with which to answer this question is found in Article 24(1) of the Administrative Litigation Act. The provision states: "Where, after a decision to suspend execution has become final, the suspension of execution has a serious impact on the public welfare, or the grounds for the suspension cease to exist, the court may, by decision, revoke the decision to suspend execution, upon the application of a party or ex officio" (Administrative Litigation Act, Article 24). The subject of this wording is the final stay order, the act is the revocation of that decision, and the condition is a serious impact on the public welfare or the disappearance of the grounds for the suspension. The route the provision opens makes revocation of the stay possible when these two circumstances exist.
Where these conditions are met, the way to revocation opens; where they are not, it stays closed. Here the author calls revocation of the stay a decision that ends the preservative state by reason of a statutory change of circumstances. This distinction matters because the fact of finality itself and the legal route by which its continuation may be examined anew point to different stages. Finality ties up the dispute over the stay order for the time being, but when the circumstances required by Article 24(1) arise, the preservative state again becomes an object of review. The condition, however, that a stay is permitted where irreparable harm and urgency are shown and the necessary scope of the stay and the limitation on the public welfare are satisfied remains as it is.
The fact that it is not easy to plan, whether for Applicant A, who relied on the continuation of the stay and prepared for execution of the disposition, or for the opposing party positioned on the premise of that execution, when the situation shakes—this is not erased. To this is added the criticism that, if the stay is limited on grounds of the public interest, the party's irreparable harm is left unaddressed. Even so, the author's answer does not change. Predictability cannot serve as grounds for closing the route that Article 24(1) has already established, and the concern over irreparable harm is, conversely, a matter to be handled in the concrete judgment of the condition in cases where urgent irreparable harm is not recognized.
In the synthetic scene, the confirmed fact is only one: that Applicant A fears restoration of the state prior to the judgment on the merits will become difficult. Whether the harm is in fact irreparable, whether the impact of the stay on the public welfare is serious, and whether the grounds for the stay have ceased to exist cannot be judged on this scene alone. In such a position, where there are no materials with which to judge the recoverability of harm or the external effect of the stay, matters for which the materials of judgment are not specified are left undetermined, as distinct from impossibility. The absence of materials does not itself mean that relief is impossible; undetermined is closer to a state held in reserve until those conditions are confirmed. If the purpose can be achieved by suspension of execution or of procedure alone, the option of suspending the effect itself is narrowed.
Accordingly, one cannot say that a stay order is maintained unconditionally until the judgment on the merits merely because it has become final, and conversely one cannot assert flatly that the stay comes to an end merely because there are no materials for judging recoverability or external effect. What is confirmed is only the wording of change of circumstances and the distinction that, where the grounds of judgment remain, the way to revocation opens.
6.4The Records Needed for Determination
Within this scene, the question whether a stay order, once final, is maintained to the very end comes first. If finality had fixed the preservative state, there should be no further records to examine; in fact, room for renewed judgment remains after the state has changed. To answer this question, one must determine what records are needed to adjudicate the stages.
The route by which protection ends after a decision to suspend execution has become final touches directly on that question of records. The relevant wording provides that "the decision to suspend execution may be revoked" (Administrative Litigation Act, Article 24). The subject this wording designates is the court; the act is the revocation of the stay by way of a decision; and its condition is that the case falls within "the case where the suspension of execution has a serious impact on the public welfare or the grounds for the suspension cease to exist" (Administrative Litigation Act, Article 24). This wording, however, merely opens the way to revocation; whether that route has actually been traversed is not determined here.
What links that wording to the conclusion of this section is the distinction between two stages of judgment. One is whether grounds for revocation exist; the other is whether revocation is actually pronounced. If the former opens, one may pass to the latter, but the latter does not automatically follow from the former alone. Adjudication of the stages is made solely on the disposition, planned execution, the nature of the harm, urgency, public welfare materials, and the materials recorded in the stay order. If, beyond this, one extrapolates the recoverability of harm or the external effect of the stay beyond the recorded materials, that is not adjudication but imagination. The principle of not filling absent records with conjecture supports this distinction.
The strongest counterargument takes aim at the point that, if the state changes frequently, the parties cannot readily predict what will happen. For the party who sought to postpone execution of the disposition by relying on a final stay, the very fact that finality can be reversed is a new source of unease. If the stay is limited by invoking serious impact on the public welfare, the criticism also comes that irreparable harm is left unaddressed. Yet the finality of the stay cannot be converted into unconditional maintenance until the finality of the merits. That the statute makes the disappearance of the grounds for the stay, or serious impact on the public welfare, conditions for revocation of the stay is read to mean that the preservative state must be examined again even after finality. The loss of predictability is the price to be paid.
In the synthetic scene, the fact now at hand is that execution of the disposition is proceeding and that Applicant A fears restoration of the state prior to the judgment on the merits will become difficult. This concern may lead to materials bearing on the nature and urgency of irreparable harm, but this is as far as the confirmed facts go. Whether the grounds for the stay have ceased to exist, and whether a serious impact on the public welfare has arisen, cannot be judged on this scene alone and therefore remain undetermined. Only after the records necessary for adjudication are assembled can the stages be settled. If it is confirmed that the purpose can be achieved by suspension of execution or of procedure alone, the option of suspending the effect itself is narrowed; but this narrows only the scope of that option and does not invalidate the maintenance of a final stay.
The conclusion this section permits is narrow. On the strength of the fact that a stay order has become final alone, one cannot assert that it is maintained until the finality of the merits; and if serious impact on the public welfare or the disappearance of the grounds for the stay is confirmed by the records, the way to revocation of the stay opens. Conversely, the mere fact that the route has opened does not mean that the stay has been revoked at once. This boundary collapses not when one hides what has been confirmed by the records, but when one hides what has not been confirmed.
6.5Circumstances That Change the Decision
This determination rests on the disposition, planned execution, the nature of the harm, urgency, public welfare materials, and the stay order. Without those records, the conclusion remains undetermined. In this scene, the question is whether that protection will continue to be extended even after the stay order became final, or whether it will be judged anew if the reasons change.
The relevant source text, Article 24(1) of the Administrative Litigation Act, provides: "Where, after a decision to suspend execution has become final, the suspension of execution has a serious impact on the public welfare, or the grounds for the suspension cease to exist, the court may, by decision, revoke the decision to suspend execution, upon the application of a party or ex officio" (Administrative Litigation Act, Article 24). This wording takes, from the point in time after the stay order has become final, a serious impact on the public welfare or the disappearance of the grounds for the suspension as its grounds. The subject of the revocation is the court, its occasion is the application of a party or ex officio, and its form is a decision. Any further requirements are not further explained in this provision.
That the provision leaves the way to revocation open means that the finality of a stay order does not lead to a guarantee of its maintenance. Accordingly, the author defines revocation of the stay as a decision that ends the preservative state by reason of a statutory change of circumstances, and distinguishes this from the suspension of the effect itself. The option of suspending the effect itself is narrowed when the purpose can be achieved by a narrower means. If the purpose can be achieved by suspension of execution or of procedure alone, the option of suspending the effect itself is narrowed.
If a person who has planned the exercise of rights on the premise of a final stay does not know when it may be reversed by an assessment called the public welfare, then that instability itself is harm. If the effect of finality is extended so that the state continues even after the grounds for the suspension have ceased to exist, the route to revocation provided by the provision is effectively blocked.
What this determination can judge is limited to whether the circumstances have changed and whether the changed circumstances open the way to revocation. Where the grounds for the suspension have ceased to exist, that may in itself constitute grounds; but when re-judging how much of the irreparable harm and urgency remains, whether the scope of the stay is as much as necessary, and how weighty the public welfare materials are, the records of the disposition, planned execution, the nature of the harm, urgency, public welfare materials, and the stay order must be present. Without these records, it remains undetermined in which direction the matter would be reversed.
Revocation of the stay does not render a final stay void; it is a decision that ends the preservative state on the ground of a statutory change of circumstances. Conversely, if no change of circumstances is confirmed, there are no grounds for revocation; but that does not mean it is immediately maintained until the finality of the merits. All this conclusion permits is the judgment that, where there is serious impact on the public welfare or disappearance of the grounds for the stay, the way to revocation of the stay opens.
6.6The Strongest Counterargument and the Answer
The preceding section took the view that where the objective can be achieved by a stay of execution or a stay of procedure alone, the choice of a stay of the effect itself is narrowed. The protection of a stay, granted with this concern in mind, cannot be left as it is if its foundation changes. Thus the question whether a stay order, once it becomes final, is maintained to the end is reopened.
The ground for answering this question is contained in Article 24 paragraph (1) of the Administrative Litigation Act. Its text provides that, where after a decision to stay execution becomes final the stay of execution has a serious effect on the public interest or the grounds for the stay cease to exist, the decision to stay execution may be revoked by a decision upon the application of a party or ex officio (Administrative Litigation Act Article 24). Here the actor is the court; the act is the revocation of an already final stay order upon the application of a party or ex officio; and the conditions are a serious effect on the public interest or the extinction of the grounds for the stay.
This text treats circumstances arising after finality as a separate stage of judgment. The urgent irreparable harm and the necessity of the scope of the stay that were considered when the stay was allowed were determinations of that time, while a serious effect on the public interest newly arising after finality, or the extinction of the grounds for the stay, is the ground for reversing the stay. If these two stages are not separated, the initial judgment overwrites later circumstances as well, and protection whose grounds have vanished remains without reason. Accordingly, the finality of a stay cannot be converted into unconditional maintenance until the judgment on the merits becomes final.
This, however, does not eliminate the concern of predictability. If the state changes frequently, the preparations a party made in reliance on the stay may be upset, and that loss falls on the one who relied on the stability called finality. A counterargument stands in the same place: if the stay is restricted on grounds of the public interest, irreparable harm is left unaddressed. Even so, the conditions for opening revocation of the stay are limited to the two described above, and only when those conditions are confirmed is a decision ending the stay rendered. Preventing such harm by converting finality into unconditional maintenance exceeds the scope set by this provision.
In the synthetic scene, the difficulty of restoring the state prior to the judgment on the merits, which Applicant A feared, is a matter of materials substantiating the nature and urgency of the harm. So long as this concern persists, the grounds for the stay remain, and the conditions for considering revocation are not yet confirmed. Conversely, if materials emerge showing that the effect on the public interest has grown or that the basis of the concern has disappeared, revocation of the stay can be taken up again. If there are no materials by which to decide which is the case, this section makes no determination.
The conclusion this section permits is that the finality of a stay order does not bar the stage that deals with subsequent changes of circumstances. Protection whose grounds remain must not be cut off in advance, but neither must it be predetermined that protection whose grounds have vanished will be maintained to the end. Either way, revocation of the stay does not depart from the meaning of a decision that ends the state of preservation upon a statutory change of circumstances.
6.7The Link to the Application and the Dispositive Part
What A desires is to keep the present state as it is while awaiting the judgment, and the stay was provided for that purpose. Yet it remains to be asked whether the stay continues without any change until the judgment is rendered, or whether, if circumstances change in the meantime, the matter must be examined afresh. The preceding section reached the conclusion that the finality of a stay cannot be converted into unconditional maintenance until the judgment on the merits becomes final; if so, how should the matter be handled when the grounds of protection have changed even after the stay has become final? This question is answered through a decision that ends the state of preservation upon a statutory change of circumstances, namely revocation of the stay. (Administrative Litigation Act Article 24)
Article 24 paragraph (1) of the Administrative Litigation Act, which corresponds to this question, sets out what circumstances arising after a stay order becomes final permit the stay order to be revoked. Its text presents two circumstances in distinction from each other. As to the mode, both an application by a party and action by the court ex officio are open. The revocation is effected by a decision, and takes the form not of leaving the final stay as it is, but of re-examining it and ending the state of preservation. The provision addresses no issue other than the two circumstances prescribed in this paragraph and the procedure therefor. (Administrative Litigation Act Article 24)
The two circumstances set by the text cannot be reconciled with the idea of unconditional maintenance of what has become final. For finality only fixes the continued existence of the stay order itself; it does not mean that circumstances arising thereafter are sealed forever. That the grounds for the stay have ceased to exist means a situation in which the irreparable harm and the urgency feared by the applicant are no longer sustained, and in that case the need for preservation itself disappears. That there is a serious effect on the public interest means the circumstance of the opposing side, namely a situation in which the burden that continuing the stay places on the public interest has grown to that extent. These two are conditions examined at different stages of judgment, and if either one applies, revocation of the stay, that is, a decision ending the state of preservation upon a statutory change of circumstances, is opened. (Administrative Litigation Act Article 24)
It is then objected that the very fact that revocation of a stay may be opened brings unpredictable instability to the parties. For a party who has designed transactions or procedures in reliance on a stay that has become final, planning itself becomes difficult if that state may be overturned at any time. Moreover, if a route is opened for ending the stay on grounds of the public interest, the result may be that the irreparable harm feared by the applicant is left entirely unaddressed. Yet even if this counterargument is well founded, the finality of a stay cannot be converted into unconditional maintenance until the judgment on the merits becomes final. The benefit of predictability extends only to protection where the circumstances concerning the grounds for the stay or the public interest have not changed; it does not compel preservation to continue while disregarding circumstances that have already changed.
The facts ascertainable in the synthetic scene go no further. Applicant A filed an action for revocation and fears that the enforcement of the disposition will proceed and make it difficult to restore the state prior to the judgment on the merits, and that concern corresponds exactly to the substantiation of irreparable harm and urgency that a stay addresses. Whether, after the stay applied for by A became final, the effect on the public interest has grown, or the circumstances of the feared irreparable harm have changed, this scene has left entirely undetermined. The service of process or the result of performance, and the outcome of the judgment, in an actual case are likewise unverified and cannot be filled in by conjecture. Accordingly, on this scene alone it cannot be confirmed that grounds for revocation have actually arisen; only when such circumstances are confirmed does the route to revocation open.
Even if a stay order becomes final, the state of preservation is again subject to questioning upon a statutory change of circumstances. If the circumstances of a serious effect on the public interest or the extinction of the grounds for the stay are confirmed, revocation of the stay, that is, a decision ending the state of preservation, becomes possible, and it is initiated upon the application of a party or ex officio. What this conclusion does not permit, however, is the opposite interpretation. The mere fact that revocation of the stay may be opened does not itself shake the value of the stay, and for actual revocation to occur, the circumstances prescribed by the text must be confirmed. Neither to assert the unconditionality of maintenance without ascertaining whether a change of circumstances has occurred, nor to end the stay without confirming those circumstances, is the conclusion of this section.
6.8The Scope This Section Undertakes
Even after obtaining a stay order, Applicant A continues to fear that the enforcement of the disposition will proceed and make it difficult to restore the state prior to the judgment on the merits. After distinguishing the substantiation of the grounds for the application from the non-staying effect of an immediate appeal against a ruling on a stay order, the question asked here is whether a stay order that has become final is left as it is until the judgment on the merits is rendered. When the state of preservation ends is the question of this section.
The text corresponding to this question is Article 24 paragraph (1) of the Administrative Litigation Act. It provides: "① Where, after a decision to stay execution becomes final, the stay of execution has a serious effect on the public interest or the grounds for the stay cease to exist, the decision to stay execution may be revoked by a decision upon the application of a party or ex officio" (Administrative Litigation Act Article 24). Here the actor of the revocation is the court, which so decides; the mode is a decision upon the application of a party or ex officio; and the point in time is after the stay order has become final. The conditions divide in two: where the stay of execution has a serious effect on the public interest, or where the grounds for the stay cease to exist.
That text is read as opening the route to revocation if only one of the two conditions is satisfied. If there is a serious effect on the public interest, or the grounds for the stay cease to exist, the route to revocation of the stay is opened. This distinction separates finality from revocation. Finality is the stage at which disputes over the stay order cease and the state of preservation becomes solid; revocation is the stage that ends that state of preservation itself. Revocation of the stay means a decision ending the state of preservation upon a statutory change of circumstances, and finality is not regarded as a state in which the possibility of that revocation is closed.
Yet the counterargument that prediction by the parties becomes difficult if the state changes frequently cannot be ignored. Even if Applicant A proceeds with the procedure in reliance on a stay that has become final, once those grounds cease to exist or an effect on the public interest becomes apparent, protection is lost again, and the burden of undoing acts already undertaken remains. This is because a means of preventing loss that even victory on the merits cannot undo cannot itself carry an effect on the public interest indefinitely, and because the text affords no ground for maintaining it after the reason for preventing the loss has vanished.
The facts ascertainable in the synthetic scene are only that Applicant A filed an action for revocation and fears that the enforcement of the disposition will proceed and make it difficult to restore the state prior to the judgment on the merits. This fact shows the direction of the concern of irreparable harm and of urgency, but does not disclose whether the stay order has become final, the effect on the public interest after finality, or whether the grounds for the stay subsist. Accordingly, on this scene alone it cannot be judged whether the conditions for revocation are satisfied. Since none of the disposition, scheduled execution, nature of the harm, urgency, public-interest materials, and stay decision, cited as the records for assessment, can be regarded as having been collected in the scene, those items remain undetermined.
The conclusion this section permits is narrow. It is only that a stay order that has become final may also be revoked upon the application of a party or ex officio where the stay of execution has a serious effect on the public interest or the grounds for the stay cease to exist, and that revocation of the stay is a decision ending the state of preservation upon a statutory change of circumstances. This section renders neither the conclusion that the stay must be maintained unconditionally whatever circumstances arise after finality, nor, conversely, the conclusion that the stay may be abolished at any time. If it is confirmed that the objective can be achieved by a stay of execution or a stay of procedure alone, the choice of a stay of the effect itself is narrowed, but that remains a separate judgment.
6.9Application of the Text of the Provisions and the Holdings of Precedents
After distinguishing the substantiation of the grounds for the application from the non-staying effect of an immediate appeal against a ruling on a stay order, it remains at issue whether the state of preservation is maintained to the end even after the stay order has become final. On this question, only the text of the corresponding provision serves as material for the decision.
The source text corresponding to this section is Article 24 paragraph (1) of the Administrative Litigation Act. Its text provides: "Where, after a decision to stay execution becomes final, the stay of execution has a serious effect on the public interest or the grounds for the stay cease to exist, the decision to stay execution may be revoked by a decision upon the application of a party or ex officio." (Administrative Litigation Act Article 24). The mode indicated by this text is one upon the application of a party or ex officio, and the act is a decision revoking the decision to stay execution. The conditions are a serious effect of the stay of execution on the public interest, or the extinction of the grounds for the stay.
When the conditions of that text are met, the route to revocation of the stay is opened, and revocation of the stay here means a decision ending the state of preservation upon a statutory change of circumstances. This judgment, however, remains within the scope of that text and is not extended by other paragraphs of the same provision or by the reasons for a judgment. The text provides only that it may be revoked, not that it must be. This is precisely why the two stages of satisfaction of the conditions and the decision of revocation must be distinguished.
The strongest counterargument is aimed at the point that prediction by the parties becomes difficult if the state changes frequently. The complaint also remains that if the stay is restricted on grounds of the public interest, irreparable harm may be left entirely unaddressed. Even so, the finality of a stay cannot be converted into unconditional maintenance until the judgment on the merits becomes final. This is because the text has already opened the route to revocation on the condition of a change of circumstances, and this judgment does not erase the harm asserted by the counterargument.
In the synthetic scene, A fears that if the enforcement of the disposition proceeds, it will become difficult to restore the state prior to the judgment on the merits. Where the nature and urgency of this harm are substantiated and the necessary scope of the stay and the restriction of the public interest are satisfied, the route of the stage of stay of administrative action pending judgment operates. Yet if there are no materials on a serious effect on the public interest or the extinction of the grounds for the stay, whether the stay is to be revoked cannot be determined from this scene alone.
What this section permits is the existence of the route to revocation of a stay in accordance with the conditions of the corresponding text; what it does not permit is an interpretation that converts its finality into unconditional maintenance until the judgment on the merits becomes final. Actual recovery or success of performance cannot be asserted either, and the absence of materials does not in itself mean that relief is impossible.
6.10Fine Distinctions Within the Stage
앞 절은 공공복리에 중대한 영향이나 정지사유 소멸이 있으면 정지 취소의 통로가 열리며 그 근거가 행정소송법 제24조의 문언에 있다고 밝혔다. 이런 우려를 담보하려고 만든 보전 상태가 원래 이유를 상실한 뒤에도 계속되는지는 별도로 물어야 한다.
행정소송법 제24조는 "①집행정지의 결정이 확정된 후 집행정지가 공공복리에 중대한 영향을 미치거나 그 정지사유가 없어진 때에는 당사자의 신청 또는 직권에 의하여 결정으로써 집행정지의 결정을 취소할 수 있다."라고 규정한다. 이 문언은 확정된 집행정지의 결정을 그 대상으로 삼는다. 취소의 사유는 집행정지가 공공복리에 미치는 중대한 영향과 정지사유의 소멸의 두 가지로 정해져 있으며, 둘 가운데 하나만으로 열리는 것으로 쓰여 있다. 발동 주체는 당사자의 신청과 직권의 둘 다이고, 형식은 결정이다.
이 문언은 앞 절의 통로가 열린다는 결론을 뒷받침하며, 그 통로를 여는 조건을 법정 사정변경으로 제한한다. 여기서 사정변경은 새로운 판단 요건이 아니라 위에서 본 문언이 정한 사유의 발생을 가리킨다. 보전 상태의 존속과 그 상태의 종료를 나누는 이유는, 전자가 확정된 정지결정의 유지라면 후자는 새로이 성립한 사유로 그 유지를 끝내는 별개의 판단이기 때문이다.
가장 강한 반론은 상태가 자주 바뀌면 당사자의 예측이 어렵다는 점과, 공익을 이유로 정지를 제한하면 당사자의 회복 불가능한 손해가 방치된다는 점을 함께 겨눈다. 신청인 A가 우려하듯 본안 판결 전에 상태 회복이 어려워질 수 있다는 손실이 그대로 남는다. 정지사유의 소멸이라는 사유는 무조건 유지라는 처리와 양립하지 않고, 공공복리의 중대한 영향이라는 사유도 문언이 정한 검토 항목으로 남는다.
합성 장면에서 이 물음에 관련된 사실은 신청인 A의 취소소송 제기와 처분의 집행 진행, 그로 인한 본안 판결 전 상태 회복의 어려움에 대한 우려뿐이다. 이 사실만으로는 공공복리에 중대한 영향이 생겼는지, 아니면 A가 걱정하는 정지사유가 소멸했는지가 확정되지 않는다. 손해의 회복 가능성이나 정지의 대외 영향을 판단할 자료가 없는 경우 미확정으로 남는다. 그 미확정은 곧 구제 불능이 아니라, 정지의 취소이든 그 유지이든 확정할 근거가 아직 모자란 상태를 뜻한다.
이 절이 허용하는 결론은 정지의 취소가 법정 사정변경에 따라 보전 상태를 끝내는 결정이라는 것과, 공공복리에 중대한 영향이나 정지사유 소멸이 있으면 그 통로가 열린다는 것이다. 허용하지 않는 것은 정지결정의 확정을 본안 확정까지의 무조건 유지로 읽는 해석이다. 확정 이후의 사유 변경을 끝까지 묻지 않는 처리 역시 문언이 정한 두 사유를 삭제하는 결과가 된다. 판결 전 행정작용의 정지의 작동과 차단과 미확정은 어떻게 구별되는가?
6.11Synthesis of Effectiveness, Blockage, and Undetermination
정지결정이 확정된 뒤에도 그 유지 여부를 처음부터 다시 묻는 단계가 남는다. 신청 이유의 소명과 정지결정에 대한 즉시항고의 비정지 효과는 구별된다. 판결을 기다리는 보호도 그 이유가 사라진 뒤에는 다시 물어야 하므로, 확정된 정지가 언제까지 이어지는지가 문제이다.
이 문언에서 취소의 주체는 법원이고, 그 방식은 결정이며, 개시 경로는 당사자의 신청과 직권의 두 가지다. 발동 조건은 집행정지가 공공복리에 중대한 영향을 미치는 경우와 정지사유가 없어진 경우로 정해진다. 문언은 취소할 수 있다고만 정하고 있을 뿐, 취소해야 한다고 의무화하지 않는다.
이 조문의 문언은 정지의 취소, 다시 말해 법정 사정변경에 따라 보전 상태를 끝내는 결정을 뜻한다. 앞 단계가 다룬 소명과 비정지 효과의 구별과 여기서의 판단은 다른 단계에 있다. 소명과 비정지 효과는 정지결정이 확정되기 전후의 절차적 진행에서 다루어지지만, 여기서 묻는 것은 확정된 정지 상태 자체를 사후적으로 끝낼 수 있는가이다. 두 단계를 나누는 이유는 전자가 정지의 성립을 다루고 후자가 이미 성립한 보전의 존속을 다시 평가하기 때문이다. 확정은 최종 확정과 같은 뜻이 아니며, 새로운 사정이 생긴 뒤에는 취소의 통로가 열릴 수 있다는 점이 이 구별의 핵심이다.
가장 강한 반론은 상태가 자주 바뀌면 당사자의 예측이 어렵고, 나아가 공익을 이유로 정지를 제한하면 당사자의 회복 불가능한 손해가 방치된다는 점을 겨냥한다. 확정된 정지를 뒤집을 수 있게 되면 신청인 A는 언제든 보호를 잃을 수 있다는 불안에서 그 비난이 시작된다. 공공복리에 중대한 영향이 생기거나 정지사유가 없어진 때를 정지가 끝나는 시점으로 보는 판단은 유지되며, 반론이 지적한 예측 가능성의 어려움과 회복 불가능한 손해의 방치 가능성은 지워지지 않고 남는다.
이 사실은 회복하기 어려운 손해의 성질과 긴급성이 소명되는 방향에 해당하며, 정지가 열리는 쪽의 조건과 맞닿는다. 그러나 기록으로 정해진 것은 처분·집행 예정·손해의 성질·긴급성·공공복리 자료·정지 결정의 종류뿐이고, 공공복리에 미치는 영향이나 정지사유의 존속을 판단할 자료는 없다. 따라서 정지의 대외 영향이나 회복 가능성에 관한 판정은 이 장면만으로 확정할 수 없다. 만약 집행 또는 절차 정지만으로 목적을 달성하는 것이 확인되면 효력 자체 정지라는 선택은 좁혀지지만, 이는 정지 범위의 선택에 관한 것으로 취소 판단의 자료 부족을 메우지 않는다.
정지의 취소 판단에서 열리는 것은 회복하기 어려운 손해와 긴급성이 소명되고 필요한 정지 범위 및 공공복리 제한을 충족한 경우이고, 막히는 것은 긴급한 회복곤란 손해가 인정되지 않거나 정지가 공공복리에 중대한 영향을 미칠 우려가 있는 경우다. 미확정은 손해의 회복 가능성이나 정지의 대외 영향을 판단할 자료가 없는 경우로 남는다. 이 셋의 구별은 정지의 취소라는 법정 사정변경의 통로 조건을 구체화한 것이지, 확정된 정지를 본안 확정까지 끝없이 유지하는 규칙을 만들지 않는다.
6.12이 권의 결론과 남는 물음
A가 보전받은 상태는 본안 판결이 선고되기 전까지 이어지지만, 그 상태가 확정되었다고 해서 이유가 남아 있는 동안 아무런 점검 없이 그대로 유지되는 것은 아니다. 보호를 받은 이유가 사라진 뒤에는 그 보호를 다시 물어야 한다. 신청 이유의 소명과 정지결정에 대한 즉시항고의 비정지 효과를 구별한 뒤, 이번 절이 다루는 것은 확정된 정지 상태가 언제까지 이어지는지와 그 상태를 끝내는 통로다.
해당 문언은 정지의 취소 조건을 이렇게 적는다. “①집행정지의 결정이 확정된 후 집행정지가 공공복리에 중대한 영향을 미치거나 그 정지사유가 없어진 때에는 당사자의 신청 또는 직권에 의하여 결정으로써 집행정지의 결정을 취소할 수 있다.”[행정소송법 제24조 제1항] 여기서 ‘집행정지의 결정이 확정된 후’란 이전에 내려진 정지결정에 대한 다툼이 끝나 그 상태가 확정된 뒤를 가리키는 조건이다. ‘당사자’는 그 정지결정의 당사자를 뜻하고, ‘신청 또는 직권’은 신청에 의한 경로와 법원이 스스로 움직이는 경로를 함께 둔다. 취소는 ‘결정’으로 하며, 그 사유는 공공복리의 중대한 영향 또는 정지사유의 소멸 둘 가운데 하나다.
이 문언이 둘로 나눈 사유를 구별해야 하는 이유는, 둘이 보전 상태를 끝내는 방향과 조건을 서로 다르게 가리키기 때문이다. 공공복리의 중대한 영향은 정지가 유지되는 쪽이 공공에 끼치는 부담이 커진 경우를 말하고, 정지사유의 소멸은 애초에 정지를 필요로 했던 그 사정이 사라진 경우를 말한다. 이 구별과 함께, 이 문언이 확정된 정지를 끝낼 수 있다고 정해도 그것은 정지 확정을 본안 확정까지의 무조건 유지로 바꾸지 않는다. 확정은 다툼을 막을 뿐, 이후 사정변경에 대한 문을 닫지는 않는다.
정지 상태가 중간에 다시 점검되면 A가 누리기를 기대한 안정적 보호가 흔들린다고 지적할 수 있다. 보전이 예고 없이 끝나면 그 사이에 처분이 집행되어 원상회복이 어려워질 수 있고, 이는 공공복리를 내세운 제한 앞에서 특히 무겁게 느껴진다. 그런데도 확정된 정지를 본안 확정까지 무조건 유지로 바꾸는 것은, 공공복리의 중대한 영향이나 정지사유 소멸이 확인된 뒤에도 그 상태를 고정해 두어야 한다는 뜻이 되어 문언이 열어 둔 통로를 닫는 결과가 된다. 반론이 지적한 예측의 어려움과 회복 불가능한 손해의 방치 가능성은 함께 남지만, 그 불리함만으로 유지의 무조건성을 정당화하지는 못한다.
합성 장면에서 이 물음에 해당하는 사실은 A가 본안 판결 전에 처분 집행으로 상태 회복이 어려워질 것을 우려한다는 점이다. 이 우려는 손해의 성질과 긴급성을 소명하는 자료에 해당하고, 공공복리에 미치는 영향을 따지는 자료는 장면에 함께 있지 않다. 정지결정이 이미 확정되어 있고 그 뒤 사정변경이 있었는지도 이 장면만으로는 판단할 수 없다. 따라서 A의 보호 상태가 계속 이어지는지, 아니면 정지사유가 소멸했는지나 정지가 공공복리에 중대한 영향을 미치는지는 기록에 따라 다시 판단할 사항으로 남는다. 장면만으로 확정할 수 있는 것은, 정지의 취소가 그 두 사유 가운데 하나에 해당할 때 비로소 열린다는 조건부 구별뿐이다.
이 절이 허용하는 결론은, 확정된 정지결정이라도 공공복리의 중대한 영향이나 정지사유 소멸이 있으면 취소로 보전 상태를 끝낼 수 있다는 것과, 그 취소는 법정 사정변경에 따라 끝내는 결정이라는 정의에 맞게 이뤄진다는 것이다. 반대로, 확정만으로 그 상태가 본안 판결 때까지 어떤 사정변경에도 구애받지 않고 계속된다고 보는 것은 이 절이 허용하지 않는 결론이다. 사유가 확인되지 않은 채 남아 있는 자료의 공백은 미확정으로 두되, 그 공백만으로 구제가 불능하다고 단정하지 않는다. 처분을 취소한 판결은 소송 당사자에게만 미치는가?
Statutes referred to
Questions left open
- 돈으로 환산 가능한 손해도 회복하기 어려울 수 있는가?
- 부분 정지로 권리와 공익을 함께 보호할 수 있는가?
- 정지 결정이 실제 현장에서 이행되는지 어떻게 확인할 것인가?