Administrative Suspension:
A Snapshot of Equitable Jurisprudence in Japan

I. Administrative Suspension

Injunctive relief is generally considered a remedy which requires or prohibits a party from taking some action the absence of which would cause irreparable damage to the petitioning party that cannot be alleviated by payment of damages. An injunction is an equitable remedy, which may be granted or denied based on fundamental notions of justice. Like many other legal systems around the world, the Japanese legal system has sought to codify the parameters in which injunctive relief may be sought by parties to litigation and the basis upon which such relief may be granted or denied. Particularly, the Japanese legal system has historically established separate procedural and substantive requirements depending on whether injunctive relief is sought in a civil law context or an administrative law context. Although based on the fact that administrative and civil courts were originally separate systems in Japan, these procedural and substantive differences have persisted despite unification of the two systems, and frequently operate to frustrate litigants who pursue injunctive relief under one regime only to discover they are obligated to seek such relief under the requirements of the other regime. Moreover, the nature of the two remedies are decidedly different in scope. Unlike the civil injunction, the administrative "suspension" (shikko teishi) applies only to administrative actions which constitute a "disposition" (shobun) under applicable law, may be granted not only upon a finding of irreparable harm to the applicant stemming from such a "disposition" but also a concurrent finding of no resulting harm to the public good.

As indicated below, the narrow requirements for a suspension restrict its applicability to a fairly limited series of circumstances, and as such, a review of the case law associated with suspensions provides a means of drawing some interesting comparisons between outcomes in similar factual scenarios, which may perhaps provide some insight into the nature of injunctions and equitable relief itself in Japan.

II. Background

The Administrative Case Litigation Law of 1962 (ACLL)1 was designed to clarify technical inadequacies of the Administrative Litigation Special Measures Law of 1948 (ALSML).2 The former law, passed at the behest of the Occupation forces, wrought enormous changes in administrative law jurisprudence, explicitly allowing challenge to administrative actions, and placing administrative cases for the first time within the jurisdiction of the civil courts.3 At the same time, however, the ACLL placed a number of procedural restrictions on the relative availability of judicial review of administrative actions, and the remedies available to prospective plaintiffs.4 Most importantly, the law allowed for the continued effectiveness of the challenged administrative action during the pendency of appeal,5 forcing the plaintiff to endure the effect of the administrative action until the final determination was made on its legality. Moreover, the administrative plaintiff had no access to any sort of injunctive relief under civil law. Instead, the ALSML allowed for the "suspension" of the administrative act only upon a showing of an "urgent necessity to avoid irreparable harm."6 Even if the plaintiff could meet this test, however, the suspension could be overridden if it was determined to be in the public interest to do so.7

These provisions were carried over without significant change in the ACLL.8 Like the ALSML, the ACLL provides that, during the pendency of any appeal of an administrative suit, the effect of the challenged disposition, its enforcement, or the continuation of its procedure are not automatically suspended.9 Moreover, the 1962 law carried over the prohibition of application of civil injunctive relief to any action regarding a "disposition of an administrative agency . . . [or] act corresponding to the exercise of public power."10 Again, like its predecessor, the ACLL provides that, upon application supported by presumptive proof, the court may, without the necessity of an oral proceeding, suspend the effect or enforcement of a disposition, or the continuation of its procedure, where it finds that such a measure is urgently necessary to avoid irreparable harm.11 However, courts may not suspend the effect of any administrative disposition where such a suspension is determined to seriously threaten the public welfare, or where such an action is determined to have no merit.12 The court must consult with the opposing party before issuing a suspension,13 and the opposing party may lodge immediate kokoku appeal of the issuance of a suspension based on allegations of harm to the public welfare, or that the plaintiff's suit has no reason. Where no appeal is taken, the suspension takes effect only after the time limit for filing the appeal runs.14 Having taken effect, the suspension of the administrative act is deemed final and conclusive.15

However, a suspension that has successfully passed this initial appeal period is not thereby immune to further challenge. Even where there has been no judicial finding that suspension of the administrative act seriously threatens to influence the public welfare, the Prime Minister may object to a suspension of execution based on an independent finding of a threat to public welfare.16 Such an objection compels the court to decline to order, or cancel a previously granted suspension.17 The Prime Minister must then report any such objection to the Diet in the next ordinary session of the Diet.18 In addition, a suspension may be canceled upon application by the opposing party at any time during the pendency of the litigation where the court finds, based upon presumptive proof, that circumstances have changed, and the reason for the suspension has ceased to exist.19 Such a determination is also subject to immediate kokoku appeal.20

A suspension is normally deemed to take effect at the time of the ruling, and, in only rare circumstances, is made retroactive to the time of the administrative disposition.21 Thus, while suspension is interpreted to prevent further action on the part of the agency which is premised on the legality of the challenged disposition, it may not apply to subsequent dispositions made by the agency which occur prior to the grant of suspension.22 However, once granted, a suspension binds the issuing agency as well as all related agencies,23 and is considered to bind third parties as well.24 The applicability of a suspension with respect to third parties depends on whether the party is a "general third party" or one whose interests may be set-off against the plaintiff's (rigaisohan).25 Where the subject of the suspension is a disposition denying an application, the agency has no subsequent duty to take any positive action until final determination on the merits.26

III. Elements of Suspension

Scholarly writings generally interpret the ACLL as establishing two "positive" and two "negative" requirements for a suspension. The first positive requirement is essentially that the plaintiff's suit be appropriate (tekiho) under the ACLL. Application for suspension is deemed to have been inappropriate when the procedural requirements of suit under the ACLL have not been met, as when the challenged administrative act does not rise to the level of "an exercise of public power" under ACLL Art 3(1), or the action is not of a type specifically recognized under the ACLL. The appropriate suit requirement is also not met where the plaintiff lacks standing to sue, or has failed to file suit within applicable statutes of limitations. Because the appropriate suit requirement relates to the plaintiff's underlying action, failure to meet its terms results not only in a denial of suspension, but may result in dismissal of the entire action.27 Under the second "positive" requirement, the plaintiff must be able to demonstrate an urgent necessity to suspend the administrative disposition in order to avoid irreparable harm. To meet this test, the harm must be determined to be indeed "irreparable," and not harm that "naturally results" from the administrative act. Courts have also interpreted the requirement of "urgency" strictly.

Once the plaintiff has fulfilled these two "positive" requirements, the court must examine the two "negative" requirements to evaluate whether a suspension should issue. In the alternative, should the court issue a suspension, the opposing party is deemed to bear the burden of proving these two "negative" requirements on appeal. Under the first "negative" requirement, the court must find--that is, the opposing party must prove--that the suspension will exert a serious influence on the public welfare. As might be expected, in order to satisfy this requirement, the court must find that the harm to the public at large in granting the suspension outweighs the harm to the plaintiff in denying suspension. As an alternative means of defeating an application for suspension, under the second "negative" requirement, the court must find--or again, the opposing party must prove--that the plaintiff's claim has no justification (riyu) under the ACLL. To meet this requirement, the challenged disposition must be shown to be without flaw, or that its suspension would amount to final satisfaction for the plaintiff, rendering litigation on the merits meaningless.

Each of these "positive" and "negative" requirements will be addressed in turn.

A. Appropriate Suit under the Act

The most critical and hotly debated aspect of the appropriate suit requirement is the necessity that the challenged administrative action meet the requirements of a disposition (shobun) under the strict interpretation of Article 3(1) of the ACLL. While a detailed discussion of the so-called shobunsei requirement in administrative actions is beyond the scope of this paper, where the administrative action does not on its face represent an "exercise of public power" courts have split as to whether to apply the Article 44 prohibition against the civil remedy of provisional dispositions thereby making the action subject to administrative suspension or whether the entire action must be dismissed with instructions that it be brought as a civil matter, with the availability of civil injunctive relief including provisional dispositions. The essential question is whether the administrative action has the character of a disposition.28

As a preliminary matter, courts have granted suspension of administrative actions that are not based on administrative dispositions themselves, but on documents attached to administrative dispositions (fukan), provided these documents, standing alone, have the quality of a disposition.29 In Sasaki, the authorities granted the plaintiffs a permit to engage in a protest march against the Viet Nam war, but attached provisos that restricted the demonstrators to certain roads and sidewalks. The court allowed suspension of the provisos on the basis that they amounted to an independent disposition that could be attacked under the ACLL.

Among the more problematic areas of the shobunsei requirement is in the field of public construction projects; whether administrative actions in planning and constructing public facilities may be enjoined under the ACLL. Especially with regard to more intrusive facilities such as waste incinerators, waste disposal facilities, and crematoriums, Japanese courts have expressed a broad range of opinions as to whether individual acts of planning, construction, and management of these facilities constitute an "exercise of public power" within the meaning of the ACLL. Crucial distinctions relied on by the courts are whether the challenged administrative activity is proprietary or governmental in nature, or whether the specific disposition is "determinative action", such as the planning of a public facility or merely a "factual action" such as the actual construction of the facility.30

As an example, courts have generally interpreted the establishment of waste disposal facilities as a factual action outside the parameters of a "disposition", and have allowed plaintiffs access to civil injunctive relief.31 Using similar logic, some courts have also allowed civil injunctive relief in cases of road construction. Other courts, however, have found road construction to be an exercise of public power within the meaning of the ACLL. In these cases, courts have either interpreted construction itself as a disposition under the City Planning Law, or have interpreted it as the enforcement of the administrative determination of the road path or the disposition altering the road path, and have thereby denied civil suits to enjoin construction.32 Courts have also prohibited civil injunctive relief for factual actions such as construction where civil injunctive relief would, as a practical matter, render an administrative action null and void.33 For example, in cases challenging water reclamation construction projects, courts have denied the application of civil injunctive remedies, inasmuch as enjoining construction would amount to a suspension of the disposition granting the agency a license to engage in such construction.34 Presumably, the courts conclude that where a civil injunction would bar the effect of an administrative disposition, the plaintiffs should be challenging the disposition directly. Conversely, some courts have allowed civil remedies is such situations, interpreting the licensing disposition as merely granting the licensee the permission to engage in water reclamation, as distinct from the rights of potential plaintiffs to seek civil injunctive relief of the construction itself.35

The discrepancies evident in these decision and the widening ambit of administrative activities in Japan have led to decisions and scholarly writings advocating access to both civil and administrative injunctive relief in cases where the administrative action is so lacking in the exercise of governmental power that its qualification as a disposition is unclear.36 This approach, known as the "mutual use theory" would substantially remedy the present ability of plaintiffs to, in effect, choose their forum based on, for example, whether they seek to enjoin the disposition authorizing construction, the construction license, or the construction itself. However, the exact nature of these "powerless" dispositions is still a matter of scholarly dispute. As a result, the "mutual use" theory has yet to have any great impact on current jurisprudence in this area.

The ACLL explicitly provides for suspension in revocation suits and declaratory actions for the affirmation of a nullity,37 as well as all agency and public actions in which revocation or declaration for the affirmation of a nullity are sought.38 There are, however, a small number of exceptional cases in which the suspension provisions are not explicitly applied to suits under the Act. An obvious exception is the declaratory action for the illegality of administrative forbearance, in which any sort of injunctive relief is unnecessary. More problematic are categories of party litigation and so-called "issue litigation" (litigation between private parties premised on the illegality of an agency disposition). The ACLL does not specifically allow suspension in these cases, although the Article 44 prohibition of application of civil injunctive relief is considered to apply.39 Scholarly writings have sought to solve this dilemma by a number of ways. Some have advocated greater flexibility in the interpretation of the standing requirements for declaratory actions for the affirmation of a nullity, allowing access to suspension in party actions that involve declaration of status (chii kakunin) according to public law.40 Others have advocated application of suspension in party suits where the underlying claim requires a determination of whether an administrative disposition is null and void, or should be revoked. Finally, scholars have simply advocated that both civil injunctive relief and suspension should be available in these suits.41

Similar theories have been suggested with regard to issue litigation. On the one hand, scholars have simply interpreted suspension under the ACLL to apply to issue litigation. On the other hand, scholars have contended that the prohibition of application of civil injunctive remedies does not apply in issue litigation where there is clear evidence of a flaw in the disposition, as this negates the existence of the disposition, as well as application of the ACLL.42 Another theory is that the prohibition of application of civil injunctive remedies applies only in proceedings in administrative tribunals. Upon review in district court, civil remedies which conflict with the legal relationship established in the challenged administrative disposition, or are based on the legal relationship between the parties before the disposition, should be granted.43 Yet another theory would permit application of civil remedies except in cases where such a remedy would entirely overturn the administrative disposition. Finally, some advocate that issue litigation is nothing more than another form of civil litigation, and provisional remedies should be available to the parties.44

In addition to the elements noted above, the appropriate suit requirement is not met where the statute of limitations for application has expired,45 where the plaintiff is considered to lack proper standing to sue,46 or where administrative remedies have not been exhausted.47 In Kadoatsu, for example, because of the plaintiff's failure to file suit for revocation of a Forced Removal Order within three months of notice of the order's existence, the court refused to suspend the order, and in fact dismissed the entire suit.48 In Niyodo River Gravel, the plaintiff gravel company sought suspension in a suit for revocation of a disposition granting an exclusive license to collect gravel in the Niyodo River to a competitor. The court determined that the expectation of a license is not a benefit protected by the law, and once the license had been granted to another, the plaintiff was interpreted to have lost standing to obtain suspension of the challenged disposition.49 Moreover, even if suspension of the license were allowed, it would cause no benefit (rieki) to accrue to the plaintiff.

This concept of lack of benefit, in some cases, provides an independent basis for denying suspension, even where the plaintiff's suit meets all the other procedural requirements of the ACLL. Especially problematic in this respect are denial dispositions (kyohi shobun), such as those revoking or denying applications or licenses. As the suspension of denial dispositions requires no subsequent positive action on the part of the agency,50 the plaintiff cannot thereby obtain the contested license or permit, nor in any way reduce damages resulting from the denial disposition.51 Thus, in Kane, the court determined that application for suspension in a suit for revocation of a disposition denying welfare benefits lacked merit since suspension would neither require the commencement of the sought-after welfare payments, nor prevent the occurrence of damages.

Yet, even in cases challenging denial dispositions, courts have recognized the legal interest of the plaintiff where suspension would in effect allow the plaintiff to pursue the contested action, or exercise a recognized right, and have therefore granted suspension.52 In Kosaka, for example, the court granted suspension of a denial of a permit under public safety regulations for a demonstration by Chinese nationals protesting the arrival of the Defense Minister of the People's Republic of China. The court considered that, as a constitutional matter, the permit system under the regulations imposed no duty to obtain a permit, as such a requirement would impinge upon the plaintiffs' freedom of expression. Instead, it was in effect a reporting system, and suspension of the denial would allow the plaintiffs to engage in the contested demonstration. Similarly, in Maclean, suspension of a disposition denying extension of a visa was considered necessary to avoid irreparable injury, as the denial would require the plaintiff to leave the country, thereby depriving him of his constitutional right to pursue his claim in court.53

B. Irreparable Damage

The ACLL allows the suspension of administrative dispositions upon a showing of an "urgent necessity to avoid irreparable damage."54 As interpreted by legal scholars and court decisions, the damage must be suffered by the plaintiff.55 Whether or not damages are irreparable is measured at the projected time of final decision.56 The "irreparable damage" language of the ACLL has been interpreted more broadly than similar language in the ALSML, and encompasses all situations in which the damage to the plaintiff is not readily reducible to a monetary value. This includes all "direct, indirect, positive, negative, real and psychological damage," in short "anything that according to ordinary views of society would be difficult to recover" may be considered as irreparable.57 In Hayashi, for example, the court allowed suspension of the portion of a Forced Removal Order requiring deportation of the plaintiff as an illegal immigrant. Although recognizing that deportation of the plaintiff would be a "natural result of such an order," the court determined the fundamental change its enforcement would cause to the plaintiff's present conditions met the qualifications of irreparable damage under the ACLL. The court also suspended the portion of the order requiring detention of the plaintiff pending deportation. In light of the fact that the plaintiff had spent many years in Japan, and had a child who was attending school in Japan, the court determined that none of the underlying purposes of detention, such as fear of escape, were applicable. Moreover, the loss of livelihood and psychological suffering that would result from detention would comprise irreparable damage justifying suspension.

Even where the plaintiff's projected damages are readily reducible to a monetary value, suspension has been awarded in some cases.58 In Kando, for example, the court suspended the disciplinary dismissal of two professors at a municipal university. Both taught part-time, but the court suggested that the effect of dismissal would impair their ability to obtain or hold other teaching positions. In addition, allowing the dismissals to continue would interfere with the plaintiffs' research, as they would be denied access to the school facilities. The court therefore concluded that the plaintiffs' damages were irreparable according to "ordinary societal views." In Ogashima as well, the court suspended the dismissal of a local Construction Bureau administrator as part of a large-scale government rationalization program. The court reasoned that the loss of funds resulting from the dismissal would have an immediate impact on the individual and his family, and was therefore irreparable. However, in Mizuguchi, the court denied suspension of a Provisional Land Conversion Disposition that resulted in the loss of part of the plaintiff's farmland. The fact that farming activity on the subject property would become impossible would not result in the loss of the plaintiff's livelihood, as he was still able to farm his other property. The court considered the reduction in the plaintiff's income as a result of the disposition, as well as the added costs of improving the plaintiff's other property, to be easily compensable in monetary damages, and therefore not irreparable. The determining factor in these cases appears to be whether the court views the plaintiff's pecuniary loss as amounting to a loss of livelihood; only then does such loss comprise irreparable damage under the ACLL.

Once damages are considered "irreparable," however, the size of the damage is unimportant.59 This point of view is especially common in what may be called the "business opportunity" cases. For example, in Seiryo, even though the plaintiff corporation "was recognized to lack the economic wherewithal, ability, or trust to carry on business," had a great many debts, and was "as good as closed," the court granted suspension of a disposition revoking authorization to use and do business at the Tokyo Chuo Wholesale Market, finding the loss of the opportunity to rebuild the business until final decision as amounting to irreparable harm. Likewise, in Kikuta, the court suspended a disposition ordering the plaintiff doctor to cease medical activities. The doctor had achieved notoriety in prior criminal proceedings concerning "baby trading" (urging unwilling mothers to give birth, then registering the child in the name of another), and had been dismissed from major medical associations. However, the court found that the disposition would result in the closure of his medical clinic, as he could find no replacement physician to take over. The resulting loss of his opportunity to rebuild his practice constituted irreparable damage under the ACLL. In both Seiryo and Kikuta, the court granted suspension despite the fact that both businesses were near extinction at the time of suit, but in both cases the difference between near extinction and extinction appears to have been enough to compel suspension.

While, as noted previously, courts have considered cases where the effect of a disposition would be to deprive the plaintiff of a recognized right,60 or where a suspension of a denial disposition would confer a benefit on the plaintiff,61 to constitute the basis for irreparable damage, where the plaintiff has taken action to reduce or eliminate the possible damage to be caused by the administrative action, courts have denied suspension even where the damage would otherwise be considered irreparable.62 Thus, in Saito, the court recognized no urgent necessity to suspend a disciplinary dismissal in order to avoid irreparable harm as the plaintiff, a public servant, was receiving benefits approximating his salary from the local worker's group since the time of his dismissal, and it was expected that those benefits would continue. Similarly, in Shioyoshi Shipbuilding, where the challenged disposition was approval of a project under the Land Acquisition Law, the court denied suspension because the Expropriation Committee had not yet made a determination to condemn the plaintiff's land, and pending such a determination, the owners of land and immovables in the project area could freely use their property to the extent that such use was not accompanied by a change in the character of the land. As a result, there had been no showing of irreparable damage to the plaintiff.

Of crucial importance in judicial determinations of whether the plaintiff's damages are irreparable under the ACLL, is the distinctive concept of "naturally occurring damages." Damages, which naturally flow from an administrative disposition, are by definition considered not to rise to the level of irreparable damages. To consider such "naturally occurring" damages as irreparable, the argument goes, would cause the contents of almost any disposition to be the source of irreparable damages and subject to suspension. This result would be inconsistent with the ACLL prohibition of automatic suspension of administrative dispositions during the pendency of appeal.63 Whether any particular sort of damage will be considered to have "naturally flowed" from the administrative action, or whether it may be considered irreparable, is a factual distinction depending on the relative effect on the plaintiff in relation to his or her status or social environment.64 Discussions of naturally occurring damage are especially prevalent, for example, in cases concerning the detention portion of a Forced Removal Order. In most cases this is considered to be "damage which is a natural result of the disposition."65 However, in some cases, the resulting physical and psychological burdens are considered to amount to irreparable harm.66 In Victoria, for example, suspension of the detention portion was allowed, as its enforcement would have prevented the plaintiff from pursuing his religious studies, which was the purpose of his stay in Japan. The court noted that where detention would result in loss of livelihood, or the inability to pursue the activity which was the purpose of the plaintiff's stay in Japan such as studies, research, business, or health, irreparable damage may occur and suspension is appropriate. Suits challenging suspension or expulsion from public educational facilities constitute another area in which "naturally occurring damages" are an issue. As a general rule, the inability to use school facilities or attend lectures is considered to be a natural result of the suspension or expulsion.67 However, if the student would be unable to obtain necessary qualifications if prohibited from attending school during the pendency of appeal, irreparable damage has been recognized.68 In Takahashi, the court found a disposition suspending a medical student at a national medical school as constituting irreparable damage, as the student would be unable to take the year-end exams unless allowed to return to school immediately. The court noted, however, that irreparable damage might not result when prohibiting the student from returning to school until the end of the suspension period or until final decision on the merits would be without meaning. This would be true where the student, due to lack of attendance, has already lost the qualifications to take the year-end examination for that school year, or could obtain the necessary qualifications for the examination after legitimately regaining status as a student.69

Another aspect of the irreparable damage requirement is the element of urgency. Although not often recognized as a distinct element, damages, which may be reducible to a monetary sum, may nonetheless be considered irreparable by the court when there is an immediate threat of loss.70 In suspending approval of water reclamation under the Public Surface Waters Land Reclamation Law in preparation of construction of a runway, the court in Okayoshida Cooperative Fishing emphasized the urgency of the plaintiff's situation as construction had already begun in the area concerned. Moreover, there was a danger of irreparable harm, as the members of the plaintiff fisherman's union held valid licenses to fish in the area to be reclaimed,71 depended on fishing activities in the area for a significant portion of their livelihood, and its destruction would result in the effective loss of their livelihood. Urgency is also a factor when the inability to enjoy a particular status or gain access to particular resources forms the basis of the anticipated damages.72 Thus, in Okamoto, the court held that recovery of the remainder of the term of office of a city council member who had been the subject of an expulsion disposition, would be nearly impossible, especially as a by-election was imminent, and therefore the loss of the remainder of the term comprised irreparable harm. Similarly, in Kokura Local, involving a disposition revoking permission to show a movie in a public meeting hall, the court emphasized the importance of freedom of expression, and the urgent quality of the damages as there was no time to demand an alternate facility. Finally, where a quality of urgency is not present, such as where the plaintiff has taken steps to reduce or eliminate the effect of the challenged disposition, suspension is less likely.73

C. Fear of Great Influence on Public Welfare

Although suit has been deemed appropriate under the law and there has been a finding of significant damage to the plaintiff, damage is not thereby considered irreparable unless it is considered to outweigh the possible negative effect on the public welfare should the suspension be granted. As expressed in court decisions and scholarly opinion, this consideration may be distilled to a comparison of the propriety of the administrative purpose to be supported, were the continuance of its effectiveness to be allowed, with the damage to be avoided by the plaintiff were it to be suspended.74 To many scholars, this presents the court with a somewhat lopsided comparison. Unlike ordinary civil suits where the court must weigh the relative impact of injunctive relief on two individual parties, the two factors to be weighed in issuing a suspension represent two entirely different sorts of interests.75

As a practical matter, cases in which considerations of public welfare have outweighed damage to the plaintiff have generally involved dispositions denying permits to group demonstrations under the public safety regulations. Courts have consistently denied suspension in these cases on the basis of public welfare, where past demonstrations by the plaintiff group or participating groups have included illegally violent acts, torts, accidents or traffic disruption.76 The effect on public welfare has also been the basis for denying suspension of public projects where a delay would bring about a fundamental change in the project.77 As an example, in Tei, the court refused to suspend a public project to enlarge roads around Shibuya station in Tokyo because of the delay it would cause to the project's completion, affecting both the public welfare and potentially affecting the agency's intention to complete the project. In Osato, the court denied suspension of a disposition determining the price to be paid for the plaintiff's land acquired by eminent domain. The court noted that over 6 billion had been invested in the project and the foundation of the structure had already been built, and further delay was expected to cost an addition 1.7 million per month. According to the court, when weighed against the plaintiff's damages, these factors demonstrated a danger of affecting the public welfare.

As noted previously, the burden of proving a danger of substantial harm to the public welfare lies with the opposing party on appeal. However, in certain cases, the burden shifts to the plaintiff. Most notably in the context of environmental cases where the plaintiffs have alleged irreparable damage in the form of the "limit of endurance" test, the plaintiff is interpreted to bear the burden of proving the absence of an effect on societal "appropriateness" or "benefit."78

D. No Reason for the Suit

In a significant departure from the ALSML, the ACLL requires the agency to bear the burden of proving there is no reason for the plaintiff's claim. This is the converse of the requirement in the previous statute that the plaintiff prove, in addition to the other "positive" requirements, the reason for the suit. The plaintiff's claim is considered to have no reason where on the face of the application, there is no basis for the suit, or the agency presents prima facie proof that the disposition has no flaw and meets all legal requirements.79 In all other circumstances, to accomplish the purpose of protecting the plaintiff's rights until final judgment, the suspension should be granted. This is true even where there is some doubt as to the basis of the plaintiff's suit.80

There are, however, two circumstances where the plaintiff bears the burden of proving the adequacy of his suit. First, where it is determined that granting a suspension would amount to a state of affairs resembling a final judgment in favor of the plaintiff, decisions and scholarly opinion have suggested that the plaintiff then must prove a reasonable likelihood of success on the merits in order to obtain suspension.81 In Amemiya, regarding expulsion of a student, the court concluded that suspension of the disposition, thereby allowing the student to return to classes, would result in a situation resembling final satisfaction of the plaintiff's demands. If the plaintiff were allowed to return to school, there is a danger that by the time final decision is reached, the plaintiff would have graduated and found a job, rendering the final decision meaningless. For that reason the court required the plaintiff to prove a reasonable likelihood of success on the merits, and finding insufficient proof of this, denied suspension.82

A second circumstance where the plaintiff has been interpreted to bear an added burden of proof is when the basis of the plaintiff's allegation is that the administrative agency exceeded the limits of its discretion in making the challenged administrative determination.83 In these cases, the plaintiff has been required to demonstrate at the outset the illegality of the administrative determination.84 For example in Endo, application for suspension of a disposition expelling students who had engaged in unruly behavior, including barricading the principal's office was denied. The court regarded the student's behavior as unacceptable, and, as the decision whether to expel or merely suspend students was within the discretion of the principal, who was an educational specialist, and trained to make such determinations, the student's suit had no reason. Similarly, in Aki, a Korean national raised in Japan sought suspension of a deportation order. The order had been issued pursuant to regulations that allowed the deportations of aliens convicted of serious crimes. The plaintiff had in fact been convicted of robbery, and had been sentenced to 15 years in prison. However, the plaintiff sought to have the order overturned on the basis that the failure of the Minister of Justice to grant the plaintiff a special permit to remain in Japan constituted an abuse of discretion. Although the court recognized the difficulties to be faced by the plaintiff who had never been to Korea nor spoke the language, it easily found the Minister of Justice's actions well within the limits of discretion, and denied suspension, there being no basis for the plaintiff's suit.

IV. Equitable Remedies in Japan

As indicated above, there is a bewildering array of case law relating to each of the positive and negative elements of a suspension. Indeed, in many of these cases, consideration of these elements seems to lead to drastically different judgments, even with respect to parties in apparently identical circumstances. While these differences may be explained by factual or procedural niceties, it is more tempting to view these differing results in the context of equitable remedies as a whole. This is especially true in view of the fact that, as Japan is a civil law system, the judicial authority in each case is not strictly bound by the determination of any other judge or court, regardless of any similarity in factual circumstances. Such differences in outcome may therefore be explained as differences in notions of "fundamental justice" applicable to a given factual circumstance. Indeed, it is perhaps in the context of equitable remedies that such notions are most manifest, insofar as, by their nature, equitable remedies demand a swift decision to prevent a harm considered "irreparable." If anything, the array of decisions regarding the requirements of suspension point to a fundamental unpredictability regarding whether a given factual situation will result in the grant or denial of injunctive relief. This, in turn, may provide some insight into the relative willingness of Japanese parties to seek judicial resolution of disputes.

End Notes

1 Gyosei jiken sosho ho (Law No. 139, 1962)
2 Gyosei sosho tokurei ho (Law No. 81, 1948)
3 John O. Haley, Japanese Administrative Law: An Introduction, Law and Society in Contemporary Japan (Kendall/Hunt Publishing Co. 1988), p. 40-41
4 Haley, p. 41
5 Art. 10, 11
6 Scholars consider this standard to be, as a general rule, far stricter than that required for ordinary injunctive relief under the Civil Code. The requirements for a provisional injunction under Civil Code Articles 755 and 760 require a showing of a "danger that a change of circumstances will render it impossible or materially difficult to realize the rights of one of the parties" or that temporarily fixing the state of affairs is "necessary, especially to avert material damage to the lasting of rights, to prevent imminent violation thereof, or for any other reason". Frank K. Upham, "After Minamata", 8 Ecology Law Quarterly 213, 227, fn. 41
7 Art. 10(2)
8 The ACLL, unlike its predecessor, defines four categories of suit to which it will apply: a) party suits, in which agencies are attacked collaterally in ordinary civil suits, b) public suits, which allow challenges to administrative actions by any person qualified to vote, but having no other legal standing, c) agency suits, which are disputes between government organs and other public agencies to resolve issues of jurisdiction and authority, and most importantly, d) kokoku appeals, which are lawsuits of grievance relating to the exercise of public power by an administrative agency. Kokoku appeals under the Administrative Case Litigation Law include: 1. actions for the revocation of an administrative disposition, 2. actions for the revocation of an administrative decision, 3. actions for declaratory affirmation of an administrative disposition as null and void, and 4. declaratory actions for the affirmation of the illegality of administrative forbearance. Haley, p. 41
9 Art. 25
10 Article 44 of the ACLL is in fact considered to be a far broader prohibition than the prohibition contained in Article 10(7) of the ALSML, as the former is considered to encompass all action under the ACLL, while the latter applied only to actions for "annulment or alteration of illegal dispositions described in Article 2 of the ALSML." Shuichi Okamura, "Kari no kyusai", Juristo (No. 925) 178, (January 15, 1989).
11 Art. 25(2)
12 Art 25(3)
13 In most cases consultation by phone appears to be sufficient, and case law indicates there is no need to consult the opposing party where the court has declined to impose suspension. Tsunetoshi Yamamura, Y. Abe ed. Hanrei Komentaru gyosei jiken soshoho (Sanseido, 1984), p.266. See 2 Gyoshu (No. 6) 877, (Tokyo High Court, May, 29, 1951).
14 Art. 25(5)
15Art. 25(6)
16 Art. 27
17 Art. 27(4)
18 Art. 27(6)
19 Art. 26
20 Art. 26(2)
21 Kozo Fujida, Shikko teishi oyobi kari shobun, (Suspension of Execution and Provisional Remedies) in Yoshitaka Watanabe, I. Sonobe ed., Gyosei jiken soshoho no taikei (The Organization of the Administrative Case Litigation Law) (Nishi Kanda Ronshushitsi, 1985), p. 446
22 So-called "successive dispositions" raise a number of procedural difficulties, especially where subsequent action based on the challenged disposition is taken by a separate agency. Okamura, p. 181. However, in Binan Real Estate Corporation v. Director of the Hiroshima National Tax Office, 19 Gyoshu (No. 12) 1940, (Okayama District Court, December 17, 1968), the court permitted application for suspension of an disposition for failure to pay taxes, despite the fact that the issuing agency (the local revenue office) was not the named defendant, and the underlying suit was for revocation of a prior disposition of tax violations issued by a separate agency (the national tax office). See also, Yamanaka v. Director of the Kobe Tax Office, 17 Gyoshu (No. 12) 1420, (Kobe District Court, December 26, 1966).
23 Art. 33(4)
24 Art. 32(2)
25 Hiroya Endo, Jittei gyoseiho (Yuhikaku, 1989), p. 413
26 Art. 33(2). Note that this was the basis of the defendant's claims in the Osaka Airport Case, 797 Hanji 36, 70-76, Osaka High Court Decision, November 12, 1975. See Upham, p. 230.
27 Upham, p. 228
28 Yamamura, p.241
29 Sasaki v. Police Chief of Osaka, 19 Gyoshu (No. 6) 1066, (Osaka District Court, June 14, 1967).
30 See Upham, p. 230-232
31 Okamura, p. 179. But see, 18 Minshu 8, Supreme Court Decision, October 29, 1964, (Denying suit under Administrative Case Litigation Law, as not constituting an exercise of public power)
32 Ibid., p. 179
33 Ibid. p. 179
34 Utskushi Ltd. v. Japan Kinki Railroad, 601 Hanji 81, Tsuchi District Court Decision, September 18, 1969 (rev'd on separate grounds, 601 Hanji 85, Nagoya High Court Decision January 22, 1970).
35 Okamura, p. 179. Kawamoto et al. v. Japan, 965 Hanji 283, Kumamoto District Court Decision, April 16, 1980; See also, 325 Hata 263, Sapporo District Court Decision, March 19, 1975.
36 Yamamura, p. 244. Hara v. City of Chiba, 836 Hanji 17, Chiba District Court Decision, August 31, 1976 (Injunction of construction of public waste disposal site granted as the action could also have been suspended if the plaintiffs had sued under the Administrative Case Litigation Law).
37 Art. 38(3)
38 Art. 43(1), (2)
39 Endo, p. 419
40 Ibid., p. 420. Article 36 permits a declaratory action for affirmation of a nullity where the plaintiff is "in danger of incurring damage due to said disposition . . . or a person having legal interest with respect to seeking an affirmation of nullity . . . who can not attain the purpose by a suit pertaining to the present legal relationship assuming the existence or non-existence of the of said disposition . . ."
41 Endo, p. 420
42 Okamura, p.180
43 Ibid., p. 180
44 Ibid., p.180
45 Kadoatsu v. Tokyo Immigration Control Authority, 505 Hanji 29, Tokyo District Court Decision, November 24, 1967.
46 Niyodo River Gravel Collection Cooperative Union v. Shikoku Local Construction Bureau, 18 Gyoshu 8,9-1257, Kochi District Court Decision, September 30, 1967.
47 Yamamura, p. 244
48 The three-month time limit is provided for in Art. 14 of the ACLL.
49 In suits for revocation and declaratory actions for affirmation of a nullity, the ACLL requires that the plaintiff have a "legal interest" which is threatened by the administrative action. Art. 9, 36
50 Such action is not required until final judgment on the merits. Art. 33(2).
51 Kane v. Director of the Hashidate Welfare Office, 618 Hanji 19, Tokyo District Court Decision, December 24, 1970; See also, Naogi v. Osaka Public Safety Commission, 20 Gyoshu 12-1553, Osaka District Court Decision, October 21, 1969; Maclean v. Minister of Justice, 21 Gyoshu 9-111, Tokyo District Court Decision, September 14, 1970.
52 Kosaka v. Tokyo Public Safety Commission, 18 Gyoshu 11-1485, Tokyo District Court Decision, November 27, 1967.
53 Suspension of dispositions that require the immediate deportation of the plaintiff have been common. However, a recent Supreme Court of Japan ruling denied suspension of a deportation order, on the theory that deportation of the plaintiff did not impinge the plaintiff's right to trial, as litigation could continue through a legal representative. Jain v. Kobe Immigration Control Authority, 852 Hanji 53, Supreme Court Decision, March 10, 1988.
54 Art. 25(2)
55 Yamamura, p. 241. See Yamada et al v. Governor of Tokyo, 22 Gyoshu 6-843, Tokyo District Court Decision, June 16, 1971 (Damage to a scenic beauty area under the City Planning Law did not constitute damage to a specified individual, and therefore was not appropriate for suspension).
56 Fujida, p. 421
57 Yamamura, p. 241. Hayashi v. Tokyo Immigration Authority, 809 Hanji 38, Tokyo High Court Decision, February 20, 1976.
58 Kando v. Mayor of Tsuru City, 17 Gyoshu 5-463; Ogashima v. Mayor of Kitakyushu, 19 Gyoshu 10-1663, Fukuoka District Court Decision, October 15, 1968; But see, Mizuguchi v. Mayor of Kochi, 682 Hanji 13, Takamatsu High Court Decision, August 21, 1972
59 Seiryo Corporation v. Governor of Tokyo, 19 Gyoshu 4-702, Tokyo District Court Decision, April 23, 1968; Kikuta v. Minister of Health and Welfare, 30 Gyoshu 7-1246, Tokyo District Court Decision, July 3, 1979
60 See cases involving group demonstration, and Forced Removal Orders, supra.
61 See discussion of denial dispositions, supra.
62 Saito v. Mayor of Ibaraki City, 19 Gyoshu 6-1099, Osaka High Court Decision, June 15, 1968; Shioyoshi Shipbuilding v. Minister of Construction, 15 Gyoshu 7-1413, Tokyo District Court Decision, July 13, 1964
63 Fujida, p. 431
64 Ibid., p. 432
65 Sadayoshi v. Kobe Immigration Control Authority, 21 Gyoshu 3-518, Osaka High Court Decision, March 19, 1970 (While granting suspension with regard to the deportation portion of a Forced Removal Order, the court refused to suspend the detention portion as the psychological and physical damages to be suffered by the plaintiff are a "natural result of its enforcement" and therefore not irreparable)
66 Victoria v. Tokyo Immigration Control Authority, 20 Gyoshu 12-1584, Tokyo High Court Decision, December 1, 1969.
67 See eg., Yamada v. Ino Prefectural Trade High School, 23 Gyoshu 6,7-381, Kochi District Court Decision, June 13, 1972.
68 Takahashi v. Sapporo Medical College, 21 Gyoshu 5-757, Sapporo High Court Decision, May 2, 1970.
69 See Kotsuya v. Tokyo City University, 700 Hanji 97, Tokyo District Court Decision, December 19, 1972 (Suspension of the expulsion of a second year student who had injured another student during a demonstration denied, as the delay in passing to the third year did not amount to "irreparable damages").
70 Okayoshida Cooperative Fishing Union v. Governor of Ehime Prefecture, 19 Gyoshu 7-1295, Matsuyama District Court Decision, July 23, 1968
71 Ownership of fishing licenses provides the basis for standing in this case as such licenses confer a legal interest on their owners. Otherwise it is unlikely the plaintiffs would have been able to bring this suit at all. Compare Yamada et al v. Governor of Tokyo, supra.
72 Okamoto v. Towada City Council, 27 Gyoshu 5-812, Sendai High Court Decision, May 29, 1976; Kokura Local Committee of the Japan Communist Party v. Kitakyushu Educational Committee, 795 Hanji 42, Fukuoka High Court Decision, June 11, 1975
73 See Saito v. Mayor of Ibaraki City, supra.; But see, Takehira v. Iizuka Public Employment Security Office, 21 Gyoshu 9-1129, Fukuoka High Court Decision, September 17, 1970 (Suspension of a determination (kettei) made by the director of a Public Employment Security Office excluding a specific unemployed person from those to be introduced to possible jobs, was urgently necessary even though the plaintiff had been receiving aid from the All Japan Free Labor Union, and there was no requirement that these monies be returned, there was nonetheless "urgent necessity")
74 See eg, Binan Real Estate Corporation v. Director of the Hiroshima National Tax Office, 19 Gyoshu 12-1940, Okayama District Court Decision, December 17, 1968
75 Okamura, p.182
76 Opponents of Oshiya War Memorial Hospital v. Tokyo Public Safety Commission, 19 Gyoshu 4-571, Tokyo District Court Decision, April 8, 1968 (Among the political groups comprising the plaintiff organization was the Antiwar Youth Committee, which had a history of violent political activity, and therefore represented a threat to public welfare) ; Kodama v. Hiroshima Public Safety Commission, 22 Gyoshu 8,9-1276, Hiroshima High Court Decision, August 6, 1971 (Suspension of provisos in attached documents to a demonstration permit denied as the interference with traffic in the area which would otherwise occur threatened an effect on the public welfare).
77 Tei v. , 14 Gyoshu 3-664, Tokyo High Court Decision, March 25, 1963; Osato Lumber Corp. v. Governor of Tokyo, 1022 Hanji 32, Tokyo District Court Decision, October 19, 1981.
78 Yamamura, p. 251
79 Fujida, p. 426
80 Ibid., p. 426. Okamoto v. Towada City Council, 27 Gyoshu 5-812, Sendai High Court Decision, May 29, 1976.
81 Amemiya v. Principal of the Tokyo Teacher's College, 633 Hanji 43, Tokyo District Court Decision, June 29, 1970.
82 Note similarity to American injunction standards.
83 Fujida, p. 429. ACLL, Art. 30
84 Endo v. Principal of Hokkaido Ebetsu High School, 22 Gyoshu 3-177, Sapporo High Court Decision, March 8, 1971; Aki v. Osaka Immigration Control Authority, 31 Gyoshu 2-105, Osaka High Court Decision, February 1, 1980.