현행 집행정지제도의 실무상 쟁점과 개선방안

초록

Under the public health emergency brought about by the COVID-19 pandemic, administrative agencies issued assembly bans to prevent the spread of infectious diseases. Courts issued partial suspension of legal effect with attached conditions to harmonize the freedom of assembly with the prevention of infectious diseases. However, such measures have interpretative issues under the Administrative Litigation Act. A suspension of legal effect decision regarding an assembly ban serves as a substitute for the merits. Once it undergoes a review equivalent to a merits decision, it acquires finality, which is not permissible under the Administrative Litigation Act. This is because the act requires suspensions of execution to be provisional. Therefore, it is necessary to clarify the scope of the satisfactory suspension that can be permitted under the interpretation of the Act. This paper proposes a model for interpreting the requirements for suspension in order to clarify the scope. According to this model, suspension cases involving significant legal interests require a review equivalent to a merits decision. In these cases, courts should consider the likelihood of success on the merits first in the manner of a balancing of interests. Satisfactory suspension should also be subject to review equivalent to a merits decision when the involved legal interests are substantial. Moreover, in order to attach conditions, a concrete balancing of interests between the freedom of assembly and the prevention of infectious diseases is required, which makes a review equivalent to a merits decision indispensable. Thus, this paper argues that the suspension of legal effect with attached conditions cannot be permitted under the interpretation of the Administrative Litigation Act because of its finality. However, given the constitutional significance of the right to assemble, alternative measures are necessary. To that end, this paper proposes the introduction of a preliminary injunction and a mandamus action through amendments to the Administrative Litigation Act.

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