Constitutional Court Rules Unconstitutional the Administrative Litigation Act Provision Excluding the State from Provisional Execution

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[Asia Economy Reporter Kim Hyung-min] The Constitutional Court has ruled that the current Administrative Litigation Act, which prevents provisional execution orders against the defendant state in administrative lawsuits filed against the state, is unconstitutional.

On the 24th, the Constitutional Court unanimously decided that Article 43 of the Administrative Litigation Act, which exempts the state from provisional execution, is unconstitutional in a constitutional review petition, stating that it is unfair compared to other rights holders such as public organizations.

The justices stated, "There is no reasonable basis to favor the state in party lawsuits against the state solely because the claim to property rights is based on a public law legal relationship," and "It is difficult to see a substantial difference between the state and local governments regarding the possibility of execution."

They added, "When courts issue rulings, they carefully consider whether it is appropriate to attach provisional execution and can prevent issues by ordering security deposits or using exemption systems for provisional execution, so there is no reason to exceptionally prohibit provisional execution orders against the state."

This case began when Professor A, who was dismissed for opposing the corporatization of Seoul National University, filed a lawsuit against the Ministry of Education. In 2011, when Seoul National University transitioned to a corporation, it inquired whether affiliated faculty members wished to retire from their public servant status and be appointed as university faculty. It also informed them that if they did not wish to do so, they would retain their status as Ministry of Education public officials for five years.

Professor A expressed a desire not to be appointed as a corporate faculty member and was dispatched to work at Seoul National University while remaining a Ministry of Education official. Later, when the Ministry of Education dismissed him ex officio in 2016, Professor A filed a lawsuit.

Although Professor A lost in the first trial, the appellate and supreme courts ruled in May 2019 that the Ministry of Education's dismissal was an abuse of discretion and unjust, resulting in a final victory.

In September of that year, Professor A returned to the university but, despite being reinstated, filed a lawsuit claiming unpaid wages from the state and requested a provisional execution order. While the Administrative Court was reviewing Professor A's case, it raised a constitutional review petition to the Constitutional Court regarding Article 43 of the Administrative Litigation Act, stating that "restricting provisional execution orders when the state is the defendant creates discrimination against lawsuits where public organizations or other rights holders are defendants, raising constitutional concerns."

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