Study on the Interpretation of Requirements for Suspension of Execution

The Administrative Litigation Act adopts the principle of non-suspension of execution. However, in some instances, a suspension of execution may be granted either by the court’s motion or upon a party’s petition. While the decision for a suspension of execution is inherently provisional in nature, it carries a conclusive effect. In administrative practice, the grant rate for suspension of execution petitions is high, whereas the acceptance rate for cases on merits is low. Through the outcome of suspension of execution petitions, parties acquire a more accurate perception of the substantive progression of their cases on merits. This mitigates relative optimism about trial outcomes. Conversely, when a suspension of execution is wrongfully granted, it becomes difficult to internalize the negative externalities. From the petition stage for a suspension of execution, a tendency exists toward excessive litigation that exceeds socially optimal levels. Based on this law and economics analysis, the Supreme Court’s ruling that establishes ‘the merits of the case must not be manifestly without grounds’ as a requirement for suspension of execution appears justified. Furthermore, the prevalent administrative practice of either taking an extremely strict and passive view toward the likelihood of success on merits or giving minimal consideration can also be deemed legitimate.