CONTENTS
- 1. Stay of Execution | Definition
- - Stay of Execution | Main Subjects
- 2. Stay of Execution | Requirements
- - Interest in a Stay of Execution
- - Suit on the Merits in Progress
- - Risk of Damage
- - Urgent Necessity
- - Compliance with Public Welfare
- 3. Stay of Execution | Procedures
- - Effects of a Stay of Execution Decision
- 4. Stay of Execution | Methods of Contesting the Decision
- 5. Stay of Execution | FAQ on Applications
- 6. Stay of Execution | Key Issues
1. Stay of Execution | Definition
A stay of execution is a procedure for temporarily suspending the effect of an administrative disposition.
It is a system that allows the execution of a disposition or its effect to be suspended while the administrative litigation or administrative adjudication filed by a party is in progress.
The purpose of this system is to prevent harm that may be difficult to recover and that could arise in the meantime, even where the party ultimately prevails in the main case.
For example, where a business operator who has received a business suspension disposition contests the disposition and files a lawsuit, if the business is halted until the judgment is rendered, the business may effectively reach closure.
In such a case, through a stay of execution, the effect of the disposition can be temporarily suspended so that the business can be protected and may continue to operate.
Stay of Execution | Main Subjects
A stay of execution is mainly used in the following cases.
▶Administrative dispositions that are critical to a business, such as business suspension and revocation of a permit
Example: A business suspension disposition issued to an operator such as a pharmacy, hospital, or restaurant
▶Personnel measures such as disciplinary action and removal from position against public officials
Example: A disposition of disciplinary dismissal, demotion, and other dispositions of disadvantage in status
▶Direct compulsory acts such as an eviction order or a demolition order
Example: Immediately before a forced demolition through administrative vicarious execution
▶Administrative dispositions that affect changes in status, such as revocation of school admission or revocation of qualifying examination results
Example: Revocation of appointment, revocation of national qualifying examination results
▶Tax-related dispositions
Provisional attachment due to failure to pay tax, dispositions imposing tax based on the results of a tax investigation, etc.
▶Demolition of a building and corrective orders
Where a demolition order is issued for a building and the order is unreasonable or improper
▶Restriction of qualifications and revocation of licenses
For a disposition revoking or restricting a specific qualification or license, a stay of execution may be applied for so that the party is not affected until the punishment becomes final.
▶School violence dispositions
Where an admonition or disciplinary measure imposed on a student as punishment for school violence is judged to be improper, an application for a stay of execution is possible in order to suspend the execution of the punishment.
2. Stay of Execution | Requirements
For a court to grant a stay of execution, all of the following requirements must be satisfied.
Interest in a Stay of Execution
If the disposition has already been fully carried out, there is no benefit in seeking a stay of execution.
However, even where the disposition has been carried out, it is recognized exceptionally where the unlawful state continues or where the stay of execution decision can restore the situation to its original state.
Suit on the Merits in Progress
The administrative litigation must have been lawfully filed and must meet the relevant requirements.
If it is a case in which an administrative appeal must be undertaken in advance, the administrative appeal must have been filed, or if the matter is still within the filing period, it may be supplemented later.
Risk of Damage
This applies where recovery is difficult even in monetary terms, or where, even if monetary compensation is possible, the anticipated harm is of a degree that the party concerned would find difficult to bear under generally accepted social norms.
The applicant must assert and prove that these requirements are met.
Urgent Necessity
A stay of execution is possible only where the occurrence of harm is so imminent in time that there is no room to await a judgment on the merits.
Compliance with Public Welfare
If there is a concern that the stay of execution would cause significant social harm, it is not granted.
There must be a concrete and individual harm to the public interest, not merely an abstract risk.
3. Stay of Execution | Procedures
The procedure for a stay of execution is as follows.
The application may be made by a party directly to the court, or the court may act on its own authority.
Jurisdiction lies with the court that hears the case on the merits.
When an applicant seeks a stay of execution, they must specifically substantiate the grounds for it (such as harm and urgency).
For the review, an interrogation date is usually set within a few days after the application, and a decision is made after hearing the opinions and materials of both parties.
Oral argument is not necessarily held, and the matter may also be decided through a review of documents.
Effects of a Stay of Execution Decision
When a stay of execution is decided, the effect or execution of the relevant disposition is provisionally stayed.
This takes effect not only on the administrative agency but also on other related administrative bodies.
In effect, the relevant administrative disposition is treated as if it had never existed.
4. Stay of Execution | Methods of Contesting the Decision
Against a decision granting or dismissing a stay of execution, an ‘immediate appeal’ may be filed within one week from the date the decision is served.
However, even where a stay of execution has been granted, an immediate appeal alone does not halt the effect of the stay of execution.
▶Can the decision be revoked?
Even after a stay of execution has been decided, the court may revoke the stay of execution decision in the following cases.
-Where the grounds for the stay have ceased to exist
In these cases as well, the matter proceeds upon the application of a party or on the court’s own authority, and an immediate appeal may also be filed within one week against the revocation decision.
5. Stay of Execution | FAQ on Applications
Let us look at FAQs regarding the application for a stay of execution.
Q. I received a business suspension disposition from an administrative agency. I think it is excessive, so may I first file an ‘application for a stay of execution’ and then file an administrative litigation later?
A. No.
An application for a stay of execution can only be made after a suit on the merits (for example, a revocation lawsuit) has been filed.
Alternatively, you may file an application for a stay of execution together with the submission of the complaint, but filing for a stay of execution on its own first, without litigation, is not permitted
Q. Why can a stay of execution not be applied for first without filing litigation?
A. A stay of execution is a system that is permitted only on the premise that the unlawfulness of the relevant administrative disposition is contested through a suit on the merits (such as a revocation lawsuit or an action for confirmation of nullity).
Accordingly, both of the following conditions must be met in order to apply for a stay of execution.
-The administrative disposition to be stayed must actually exist
-A lawful suit on the merits regarding that disposition must be pending
That is, a ‘disposition’ plus the ‘filing of litigation’ are the preconditions.
Q. Then is a stay of execution not applied for separately from the suit on the merits?
A. That is correct.
A stay of execution can be applied for only when a ‘case on the merits’ (for example, administrative litigation or an administrative appeal) is in progress.
However, it is possible to submit it simultaneously with the merits, and in practice it is common to submit the application for a stay of execution together right at the time of filing the complaint with the court.
Q. Then how should I prepare?
A. Prepare as follows.
1. File the suit on the merits: File a revocation lawsuit (or an action for confirmation of nullity, etc.) with the administrative court
2. Prepare the application for a stay of execution: Apply simultaneously with the suit on the merits or afterward
3. Attach supporting evidence: Material that can prove the concern of harm, urgency, and the like is required
4. Submit documents or attend the examination: If necessary, the court may summon both parties for examination
6. Stay of Execution | Key Issues
In a stay of execution, proof of substantive circumstances is very important, not merely a formal requirement.
There are many matters that the applicant must demonstrate, such as what constitutes harm that is difficult to recover, how urgent the situation is, and whether there is any concern of harm to the public welfare resulting from the stay, and these must be persuasively shown through concrete materials and reasoning.
In addition, in a stay of execution, the key task is to prove that the case does not fall under clear grounds for dismissal, but it is not easy for a layperson to assess this clearly from the standpoint of precedent or practice.
In particular, a stay of execution may appear to be a procedure separate from the suit on the merits, but in practice it is a system that is granted only when the persuasiveness and reasonableness of the claim on the merits provide support.
Because the proof logic in a stay of execution affects the suit on the merits as well, a structure that precisely connects the unlawfulness of the disposition with the causal relationship of the harm is needed.
At this firm, attorneys experienced in administrative matters who have handled numerous cases in which a stay of execution was granted provide a prompt and strategic response to administrative dispositions based on practical experience.
You may wish to note that the firm operates branch offices in regions throughout the country, an emergency consultation system available at all hours, and non-face-to-face video consultation services, and to reach the firm by whichever method is convenient.
