보조금 지원약정 해지와 집행정지의 효력

초록

Temporary order of suspension, as prescribed in the Administrative Litigation Act of Korea, is an important measure to guarantee the effectiveness of judicial review of administrative decisions; it stops the administrative decision from either taking effect or being executed. The order of suspension is, by its very nature, temporary, but the meaning of this temporality needs further examination. When a government contract enabling a person to receive monthly subsidies for a certain period is revoked, this revocation is understood as an administrative decision and thus the subject of judicial review. When the revocation in question is effective only for the future, the order of suspension enables the plaintiff to keep receiving the subsidy. If the court on the merits rules that the revocation is legal and thus fully valid, does it make the plaintiff return the amount already provided during the suspension? To seek an answer to the question, I examined the existing theories and case laws on the relation between the ruling on the merits and the effect of the suspension order. Then I analyzed the difference between suspension of validity and suspension of execution and their respective outcome when the court on the merits rules against the plaintiff. This lead me to a following conclusion. Suspension of validity suspends the effect of the administrative decision whereas suspension of execution only stops its execution. The ruling on the merits does not change the effect of either suspension. As discontinuing the payment of subsidy can also be regarded as a form of execution, the court does not need to suspend the effect of the revocation; it has only to suspend its execution, which will bring the same results as suspension of validity. The difference lies in the effect the court’s decision of dismissal has on the subsidy paid during the suspension; as suspension of execution has no impact on the validity of the revocation in the first place, the execution of the revocation can be resumed from the beginning of the suspension; as a result, the amount already provided to the plaintiff must be returned to the administration.

키워드