프랑스 행정소송법상 가처분결정의 잠정적 효력

초록

Temporary order of suspension, as prescribed in the Administrative Litigation Act of Korea, is much different from temporary measures under the Civil Execution Act. It merely stops the administrative decision for a certain period of time from taking effect or being executed. If the court on the merits rules that the administrative decision is legal after all, it resumes its full effect from then on: there should be no big problems in the legal relations concerning the decision. At least that seems to have been the general idea. However, a recent Supreme Court ruling shows that, in some cases, there may be complex issues with the fate of a deed done or a status formed during the suspension. A comparative research on the ‘référés’, a set of temporary injunctions under the French Code of Administrative Justice, may give an insight for finding solutions to such issues. The Code states that the référés are provisional in its nature. This ‘provisionality’, the essence of the temporary injunctions, means something which is determined at the preliminary state and possible to be replaced by a judgement on the merits. Judges can order a suspension with an injunction: such injunction can only be added when it is reversible in the future. The effects of the order of suspension under the Korean Administrative Litigation Act needs to be understood in consideration of its provisionality. It is important to analyze the extent to which the consequences of the suspension can be or should be reversed. Meanwhile, suspension on certain kinds of administrative decisions, such as a decision banning a particular demonstration, is the Korean equivalent of the French ‘référé-liberté’: the suspension loses de facto its reversible nature but it is often the only means of judicial remedy. This should be taken into account in deciding for or against the suspension. Lastly, works on the French system leads us to doubt the assumption that the suspension of a decision and the injunction against a refusal to make a decision are two fundamentally different systems. Is it right to introduce a temporary injunction in our administrative litigation procedure only as a remedy for decisions of refusal while leaving the current temporary suspension exclusively for decisions other than refusals? Are additional requirements, compared to the conditions for suspension orders, needed for ordering injunctions? More research on the French system could serve as a clue to answers for such questions.

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