Summary
It must be specified whether the action constitutes a refusal of a statutory disposition, and such a refusal must be distinguished from an unsatisfactory explanation itself.
2.1The Standard by Which the Path Opens
Mere disappointment with a reply does not determine the object of an action for revocation. In the scene where Applicant A treats Agency B's reply as a disposition but the agency contends that it is merely simple guidance, the mere fact of dissatisfaction with that reply does not immediately make the reply an object of the lawsuit. On the premise that, under the statutory definition of dispositions, etc., one must look to such acts as the exercise or refusal of public authority concerning specific facts, it must be determined whether that reply is an act that legally refused the requested benefit or whether it amounts to no more than a document that merely explains.
The text that answers this question is found in Article 2, paragraph (1), subparagraph 1 of the Administrative Litigation Act. That provision defines dispositions, etc. as “the exercise of public authority concerning specific facts as enforcement of laws, or the refusal thereof, any other act equivalent thereto (hereinafter referred to as ‘disposition’) and a ruling on an administrative appeal” (Administrative Litigation Act, Article 2). Here it is determined together that the subject is an administrative agency, the object is specific facts, and the character is the exercise or refusal of public authority as enforcement of laws. Accordingly, in order to determine whether a document possesses the character of a disposition, one must look not to the document's title or wording but to whom that document acted upon, as to what specific facts, and by what legal act. This definition also encompasses rulings on administrative appeals, but what is treated in this section is not a ruling but Agency B's response to the application.
Article 19 of the same Act provides that “an action for revocation takes dispositions, etc. as its object” (Administrative Litigation Act, Article 19). This provision connects with the definition above. For the entrance to an action for revocation to open, a disposition, etc. falling under Article 2, paragraph (1), subparagraph 1 must first be identified, and among those dispositions, etc., which act corresponds to the refusal of the requested benefit must be pinpointed. Only when that identification specifies in writing the requested benefit, the parties, and the conditions in the statement of claim, and is organized in a form capable of defending the right of the chosen action, does one reach the channel of this relief. By contrast, where the agency's reply is no more than simple guidance and lacks the character of a disposition, or where, even though an application was made, there is no statutory duty to render a disposition and it therefore does not constitute a statutory omission, that response itself cannot be treated as a refusal disposition. The object status as a refusal spoken of here means the question whether a response to an application amounts to a refusal of a statutory disposition. That question and the question of whether the document was polite or impolite stand at different stages.
The counterargument that relief may become difficult if an administrative agency avoids the form of a refusal cannot be left unaddressed. For if power operates in the guise of informal explanation or guidance while in fact blocking the applicant's legal status, an object-status determination focused on form may empty the channel of relief. Yet even acknowledging this criticism, an adverse guidance cannot be converted into a refusal disposition without confirmation of its legal character. While leaving intact the loss pointed out by the counterargument, one must first confirm whether a given response constitutes a refusal of a disposition, etc. The moment guidance is elevated to a refusal disposition without such confirmation, the meaning of the requirement in Article 2, paragraph (1), subparagraph 1 that there be the exercise or refusal of public authority as enforcement of laws concerning specific facts is blurred.
Returning to the synthetic scene and comparing only the facts relevant to this question, what is settled is merely the opposition between Applicant A's assertion that Agency B's reply is a disposition and Agency B's assertion that the reply is simple guidance. The scene leaves undetermined the content of the application, the wording and legal effect of the reply, the basis for a duty to dispose of the application, and the presence or absence of an original disposition and a ruling on an administrative appeal; and none of the records needed for the determination—the application, the reply, any change in legal status, the basis for the duty to dispose, the course of events, and the original disposition and ruling—has been secured. Accordingly, whether this reply constitutes a refusal of a disposition, etc. remains undetermined. If the guidance is confirmed to be a registration disposition that actually sets legal status, the object-status determination would change.
The conclusion permitted in this section is as follows. The entrance to this relief opens where an administrative act corresponding to a disposition, etc., or an omission as to which a statutory duty to dispose of the application exists, is identified. Conversely, a conclusion that simply elevates a dissatisfying explanation itself into a refusal disposition, or that asserts object status while the legal effect of the document or the basis for the duty to dispose remains unconfirmed, is not permitted by this section. Neither does the mere fact of not receiving the desired answer determine the object of an action for revocation, and whether that response is simple guidance or a refusal disposition is determined through the definition examined above and its application.
2.2The Conditions That Block Relief
This means that the mere fact that the applicant disliked the content of the reply received does not permit that reply to be made an object of the lawsuit straightaway. At the previous stage, the criterion was confirmed that, under the statutory definition of dispositions, etc., one must look to such acts as the exercise or refusal of public authority concerning specific facts. Upon that criterion, this question is posed narrowly. Is everything a refusal disposition merely because one did not receive the desired answer? And under what conditions is the channel of relief closed?
The applicable text that answers this question is in Article 2 of the Administrative Litigation Act. That text defines that “‘dispositions, etc.’ means the exercise of public authority concerning specific facts as enforcement of laws, or the refusal thereof, any other act equivalent thereto (hereinafter referred to as ‘disposition’) and a ruling on an administrative appeal” (Administrative Litigation Act, Article 2). This definition points to three things. First, the subject is an administrative agency. Next, the act is the exercise or refusal of public authority as enforcement of laws concerning specific facts, and any administrative act equivalent thereto is also included. The question is under which item of this definition Agency B's reply falls.
Article 19 of the Administrative Litigation Act declares that an action for revocation takes dispositions, etc. as its object (Administrative Litigation Act, Article 19). For the door of the lawsuit to open, an object falling under the foregoing definition must first be identified. Here two stages of determination diverge. One is whether the reply itself is an administrative act corresponding to a disposition, etc.; the other is whether the reply amounts to a refusal, as the performance of a statutory duty to dispose of the application. The former asks about the legal character of the act, the latter about the existence of the duty. The reason these two must be distinguished is that if simple guidance is turned into a refusal disposition, the result is that object status is fixed without passing through any determination at all.
Relief may become difficult if an administrative agency avoids the form of a refusal. The counterargument that the more public authority operates by informal means, the more the formal concept of a disposition empties relief, is aimed at the loss in reality. The applicant obtained no desired result, and however gentle the wording of the reply, in substance it is no different from having been refused. Yet adverse guidance cannot be converted into a refusal disposition without confirming its legal character. What this answer leaves unfavorable is also clear. A refusal in the guise of guidance may remain in a blind spot of the system. Even so, the identification of the subject, the act, and the conditions that the text requires cannot be skipped.
In the synthetic scene, Applicant A treats Agency B's reply as a disposition, but the agency asserts that it is simple guidance. Comparing this opposition with the foregoing conditions, the records for the determination are the application, the reply, any change in legal status, the basis for the duty to dispose, the course of events, and the original disposition and ruling. If the reply actually set or changed the legal status of Applicant A, there is room for it to be identified as an act corresponding to a disposition, etc. Conversely, if the reply went no further than explanation, it may constitute simple guidance. Moreover, unless a basis is confirmed that Agency B was under a statutory duty to dispose of the application, the matter does not reach a statutory omission either. With the legal effect of the reply and the basis for the duty to dispose unconfirmed at present, this scene alone leaves the matter undetermined.
The conclusion permitted by this section is conditional. Where the agency's response is no more than simple guidance and lacks the character of a disposition, or where there is no statutory duty to dispose and it is therefore not a statutory omission, if any one of the statutory requirements is unmet, the channel of relief is closed. Conversely, if the reply is identified as an act that goes beyond the dissatisfying explanation itself and amounts to a refusal of a statutory disposition, the door to the object-status determination opens.
2.3The Boundary That Remains When There Is No Data
In the scene where Applicant A treats Agency B's reply as a disposition but the agency asserts that it is simple guidance, the preceding question is whether everything is a refusal disposition merely because one did not receive the desired answer. What the previous stage confirmed is that, under the statutory definition of dispositions, etc., one must look to such acts as the exercise or refusal of public authority concerning specific facts, and this stage addresses where to place the boundary that, under that criterion, cannot be settled for want of materials. That is to say, the mere fact of disliking the content of the reply does not give rise to an object of lawsuit, and the legal character of the response must be separately identified.
Article 2, paragraph (1), subparagraph 1 of the Administrative Litigation Act defines that “‘dispositions, etc.’ means the exercise of public authority concerning specific facts as enforcement of laws, or the refusal thereof, any other act equivalent thereto, and a ruling on an administrative appeal” (Administrative Litigation Act, Article 2). In this text the subject is an administrative agency, the act is the exercise or refusal of public authority as enforcement of laws concerning specific facts, and a ruling on an administrative appeal is separately enumerated as well. This question is confined to how, within this definition, an act corresponding to a refusal is identified, and does not unfold other issues that the provision also regulates. Accordingly, to determine whether the reply corresponds to a disposition, etc., the question comes first whether that document is a legal response to the application or merely an explanation amounting to guidance.
Article 19 of the Administrative Litigation Act provides that “an action for revocation takes dispositions, etc. as its object” (Administrative Litigation Act, Article 19), binding the object of the lawsuit to dispositions, etc. Connecting this basis with the foregoing definition, for object status to arise, the reply must be identified as an act corresponding to a refusal under the statutory definition. Here, “object status as a refusal” means the question whether a response to an application amounts to a refusal of a statutory disposition, and is distinguished from the empirical fact of dissatisfaction with that response. The reason the two concepts must be viewed separately is that the former does not arise automatically on the premise of the latter, and this distinction is only the criterion at the first stage of determining object status, adding no separate requirement or exception.
The counterargument that relief may become difficult if an administrative agency avoids the form of a refusal is aimed at the loss whereby the more public authority operates by informal means, the more the formal concept of a disposition empties relief. Where an adverse guidance produces the effect of substantively refusing an application, yet object status is denied by looking only to the document's name and form, the party cannot reach the statutory channel and the harm remains. Even so, an adverse guidance cannot be converted into a refusal disposition without confirmation of its legal character. While leaving intact the inconvenience pointed out by the counterargument, that inconvenience cannot be remedied by overturning and fixing as a refusal disposition a matter whose object status has not been confirmed.
The determination permitted by this section is to leave undetermined the boundary that cannot be settled for want of materials. The facts confirmed in the synthetic scene are only the opposition that Applicant A treats Agency B's reply as a disposition while the agency asserts that it is simple guidance, and neither the legal effect of the reply nor the basis for a duty to dispose has been confirmed. Accordingly, on the present records, the materials for determining whether that response corresponds to a statutory refusal have not been identified, and hence it cannot be declared impossible. The reason a state of insufficient materials is kept undetermined rather than converted into a failure of relief is that, if the guidance is confirmed to be a registration disposition that actually sets legal status, the object-status determination would change.
The conclusion of this section is that, where the legal effect of the document or the basis for the duty to dispose is unconfirmed, matters for which the materials of determination have not been identified are distinguished from impossibility and left undetermined. Accordingly, what is permitted to be said is that the legal character of the reply has not yet been confirmed, and what is not permitted to be said is either of the two assertions that the reply is already a refusal disposition or that relief is already impossible. Undetermined does not mean that the legal channel is closed, but that matters remain to be confirmed, and the object-status determination may change after such confirmation.
2.4The Records Needed for Determination
Object status as a refusal means the question whether a response to an application amounts to a refusal of a statutory disposition. If simple guidance and the refusal of a disposition bear different legal characters, the question at this stage is what materials are needed to draw the boundary between the two.
As the text that answers that question, Article 2, paragraph (1), subparagraph 1 of the Administrative Litigation Act provides: “1. ‘Dispositions, etc.’ means the exercise of public authority concerning specific facts as enforcement of laws, or the refusal thereof, any other act equivalent thereto (hereinafter referred to as ‘disposition’), and a ruling on an administrative appeal” (Administrative Litigation Act, Article 2). This definition confines the subject to an administrative agency, the act to the exercise or refusal of public authority as enforcement of laws concerning specific facts, and administrative acts equivalent thereto. Accordingly, for a reply to correspond to a disposition, etc., whether that document bears the character of the exercise of public authority or of the refusal thereof becomes the textual criterion. In the same vein, the provision that “an action for revocation takes dispositions, etc. as its object” (Administrative Litigation Act, Article 19) likewise requires the identification of the object.
To move the identification required by these two texts into actual determination, one must confine oneself to the confirmed records within the scope set in advance. In this section, the records for the stage determination are the application, the reply, any change in legal status, the basis for the duty to dispose, the course of events, and the original disposition and ruling. The application record shows what was sought, the reply record shows what Agency B answered, and any change in legal status shows whether a change arose in the rights and obligations of Applicant A by reason of that reply. The basis for the duty to dispose and the course of events indicate whether Agency B was under a duty to process the matter and how that duty proceeded. The original disposition and ruling speak to the record of any prior determination. With these records, it is determined whether the response to the application is a refusal of a statutory disposition or no more than simple guidance, and missing records are not filled in by presumption.
The point most strongly targeted by the counterargument that relief may become difficult if an administrative agency avoids the form of a refusal is the inconvenience that, where an adverse guidance substantively refuses an application while its form is merely simple guidance, Applicant A cannot reach the channel of lawsuit. The concern that the more public authority operates by informal means, the more the formal concept of a disposition may empty relief, lies in the same context. Yet an adverse guidance cannot be converted into a refusal disposition without confirmation of its legal character. This answer does not erase the loss pointed out by the counterargument, but neither does it permit a method that skips the procedure of confirming the document's character and fixes only the result.
In the synthetic scene, the facts relevant to this question are only the opposition between Applicant A's assertion that Agency B's reply is a disposition and Agency B's assertion that the reply is simple guidance. These records alone do not settle whether the reply set legal status or whether Agency B was under a duty to dispose. Accordingly, what can be determined on the present records is not which assertion is correct, but what further materials are needed for the stage determination. A state in which the legal effect of the document or the basis for the duty to dispose is unconfirmed remains undetermined.
The conclusion permitted by this section is that the stage is determined on the materials recorded in the application, the reply, any change in legal status, the basis for the duty to dispose, the course of events, and the original disposition and ruling, and that missing records are not filled in by presumption. The conclusions not permitted are, on the one hand, converting the reply into a refusal disposition solely on the ground that the desired answer was not received, and, on the other, asserting that the reply is simple guidance solely on the ground that the agency's explanation was adverse. The stage determination is made only upon the records that have been set.
2.5Circumstances That Change the Decision
If the preceding stage examined the acts of the administrative agency as acts of public authority—such as the exercise or refusal thereof—in accordance with the statutory definition of dispositions or other acts based on specific facts, the remaining question is which of those acts corresponds to the refusal of a statutory disposition. That is, whether every failure to receive the desired answer constitutes a refusal disposition.
The provision that answers this question is Article 2 paragraph (1) subparagraph 1 of the Administrative Litigation Act. Here the subject is the administrative agency, and what is addressed is the exercise of public authority as the enforcement of laws pertaining to specific facts, or the refusal thereof, together with administrative acts similar thereto. What the provision speaks of is not the unsatisfactory explanation itself, but a legal act pertaining to specific facts.
Connecting that definition with the conclusion of this section clarifies what the object-status of a refusal asks. It is not enough merely that the desired answer did not issue in response to the application; that response must be identified as a refusal of a legal act with respect to the application. Accordingly, an unsatisfactory explanation itself and the refusal of a statutory disposition must be distinguished. The former is dissatisfaction with the content of the response, while the latter is a judgment that the response falls within the acts of the statutory definition.
This distinction entails an evident loss. The more public authority operates in informal ways, the more the formal concept of a disposition may empty out relief, and this does not erase the inconvenience suffered by an applicant before a response dressed up, for convenience, as guidance. Even so, adverse guidance cannot be converted into a refusal disposition without confirmation of its legal character. Nor is disposition character denied merely because it bears the designation "guidance"; but neither is disposition character established by that designation alone.
The facts ascertained in the synthetic scene are as follows. This confrontation alone does not determine whether the reply corresponds to a refusal of a statutory disposition; what must be confirmed from the records is the application, the reply, any change in legal status, the basis for the duty to render a disposition, the elapsed course, and the original disposition and adjudication. Where the legal effect of the document or the basis for the duty to render a disposition has not been confirmed, the determination of object-status remains undetermined.
The conclusion permitted in this section is that the mere fact of not having received the desired answer does not identify a refusal disposition, and that one must ask whether the response to the application is identified as an act corresponding to a refusal of a statutory disposition. In determining object-status, an action for revocation targets dispositions or other acts (Article 19 of the Administrative Litigation Act), so the identification of the disposition or other acts that is the subject must come first. The impermissible conclusion is to carry over adverse guidance as a refusal disposition without confirmation of its legal character. The pathway leading to the object of appeal litigation opens where an administrative act corresponding to a disposition or other acts is identified, or where an omission for which there is a statutory duty to dispose of the application is identified; the absence of facts prior to asserting that pathway is undetermined.
2.6The Strongest Counterargument and the Answer
From the preceding analytical stage it carries over only the point that not every response failing to yield the desired answer is immediately a refusal disposition. Whether the reply issued by Agency B is a disposition or not depends not on the magnitude of the dissatisfaction but on the legal character of that act. Within this confrontation, the question this time is whether there is a ground for fixing a conclusion without confirmation of legal character.
First confirm the provision prescribing the object of an action for revocation. Article 19 of the Administrative Litigation Act declares that "an action for revocation targets dispositions or other acts," binding the gateway of an action for revocation to dispositions or other acts (Article 19 of the Administrative Litigation Act). Then the criterion for what constitutes a disposition or other acts must also be settled. The statutory definition of dispositions or other acts is "the exercise of public authority as the enforcement of laws pertaining to specific facts by an administrative agency or the refusal thereof, other administrative acts similar thereto, and adjudication of administrative appeals" (Article 2 subparagraph 1 of the Administrative Litigation Act). This provision fixes the subject of a disposition as the administrative agency, the act as the exercise of public authority as the enforcement of laws pertaining to specific facts or the refusal thereof, and the condition as extending to administrative acts similar thereto. Whether a single reply touches this definition is judged not by the document's heading or wording but by the legal character of the act exercised by the administrative agency.
Connecting the above ground with the conclusion of this section yields the judgment that "adverse guidance cannot be converted into a refusal disposition without confirmation of its legal character." Here two stages are distinguished. First, one identifies whether the response to the application is an act corresponding to a refusal of a statutory disposition. Second, one brings it before an action for revocation only where the identified act corresponds to a disposition or other acts. The object-status of a refusal refers to the former stage, and points to the question whether the response to the application corresponds to a refusal of a statutory disposition. Skipping this distinction results in fixing even a mere explanation or an unhelpful reply as a refusal disposition. That is a judgment exceeding the requirements set by the provision.
The counterargument that criticizes this judgment most sharply aims at the gap in relief in reality. The more public authority operates in informal ways, the more the formal concept of a disposition empties out relief. If an agency deliberately avoids the form of a refusal, the applicant suffers the inconvenience of not obtaining the intended result and, because the object is not identified, of being unable to bring an action. A loss also remains in that a de facto refusal hidden behind an ambiguous answer goes uncontrolled. Even without denying this point, the conclusion stands. The difficulty of relief pointed out by the counterargument does exist, but that difficulty alone cannot elevate an act that fails to satisfy the requirements of the statutory definition into a disposition. The circumstance that relief is difficult and the recognition of object-status are separate judgments.
Comparing only the facts given in the synthetic scene, what can be confirmed from the records is whether there exist an application, a reply, a change in legal status, a basis for the duty to render a disposition, an elapsed course, and an original disposition and adjudication. The key points of comparison are whether Agency B's reply actually established or changed Applicant A's legal status, and whether Agency B was under a statutory duty to dispose of the application in response. If these facts are not confirmed, the determination of object-status remains undetermined. Fixing a refusal disposition on the premise of the unconfirmed legal effect of a document is not permitted by this scene. Meanwhile, if the guidance is confirmed to be a registration disposition that actually establishes legal status and the like, the determination of object-status is corrected. However, this is merely a test that changes the conditions of the determination, not something that actually happened in the scene.
What this section permits is the judgment of first confirming the legal character of the response to the application, and opening the pathway leading to the object of appeal litigation only where an act corresponding to a refusal of a statutory disposition is identified. What it does not permit is the judgment of converting a reply into a refusal disposition on the sole ground of disappointment or unhelpfulness. A conclusion fixing object-status while the legal effect of the document or the basis for the duty to render a disposition remains unconfirmed also lies outside this scope. The same conclusion holds where there is no disposition character, or where there is no statutory duty to render a disposition and thus no statutory omission. Even where the object-status of a refusal has been fixed, relief has not yet borne fruit; the stages thereafter are a separate judgment.
2.7The Link to the Application and the Dispositive Part
In this scene, what the reply refused, and whether that refusal corresponds to a refusal of a disposition as prescribed by law, form the center of the question. The conclusion received from the preceding section is a single one. Only the premise that adverse guidance cannot be converted into a refusal disposition without confirmation of its legal character is set out.
Article 2 of the Administrative Litigation Act, in defining dispositions or other acts, records together "the exercise of public authority as the enforcement of laws pertaining to specific facts by an administrative agency or the refusal thereof, other administrative acts similar thereto" (Article 2 of the Administrative Litigation Act). In this provision, the subject is the administrative agency, the act is the exercise of public authority as the enforcement of laws pertaining to specific facts or the refusal thereof, and other administrative acts similar thereto are encompassed as well. Dispositions or other acts also include adjudication of administrative appeals, but what this section addresses is whether a reply to an application corresponds to the act of refusal in the earlier part.
Understood in accordance with this provision, for a reply to an application to be taken as a disposition or other acts, that reply must be an act corresponding to the refusal of public authority as the enforcement of laws. The circumstance that the explanation contained in the reply was unpleasant to Applicant A or fell short of expectations alone does not settle the legal character of that act. Here two judgments must be distinguished. One is the impression made by the expressions in the reply document; the other is the judgment whether that reply effected a refusal of a statutory disposition with respect to the application. The latter judgment divides the object of an action for revocation.
If an administrative agency, while in substance rejecting an application, dresses up the document as mere guidance, the applicant may be left unable to make an adverse act the object of a lawsuit. That loss is real. However sharp the wording of the guidance may be, whether the document is an act corresponding to a refusal of a statutory disposition must be confirmed separately. While the gap in relief pointed out by the counterargument is acknowledged, it cannot be resolved by omitting the confirmation procedure and hastening the conclusion.
What can be confirmed in this scene is the fact that there was an application, that Agency B sent a reply, and that Applicant A regards that reply as a disposition while the agency asserts it was mere guidance. Whether the reply brought about a change in legal status, whether a duty to dispose of the application was grounded in statute, and how the records of the elapsed course and the original disposition and adjudication stand are not settled by this scene alone. However, if a single condition were changed, the judgment would differ. Unless that condition obtains, matters remain undetermined.
Accordingly, the permissible conclusion is narrow. If the reply is identified as an act corresponding to a refusal of a statutory disposition, that refusal can be handled as the object of an action for revocation, but the unsatisfactory explanation alone does not determine the object. Where it is no more than mere guidance and has no disposition character, or where there is no statutory duty to render a disposition and thus it does not reach a statutory omission, another path must be sought. What is decisive is which way the records of the application, the reply, any change in legal status, the basis for the duty to render a disposition, the elapsed course, and the original disposition and adjudication point.
2.8The Scope This Section Undertakes
The preceding section yielded the standard that one must identify whether an act corresponds to a refusal of a statutory disposition, and distinguish it from an unsatisfactory explanation itself. In the scene where Applicant A regards Agency B's reply as a disposition while the agency asserts it was mere guidance, how does this conclusion take up that premise and carry it forward? The point is examined on the object-status of a refusal, that is, the question whether the response to the application corresponds to a refusal of a statutory disposition.
The provision corresponding to this question is Article 2 paragraph (1) subparagraph 1 of the Administrative Litigation Act. Here the subject is the administrative agency, the object is an act pertaining to specific facts, and the form of the act is the exercise of public authority or the refusal thereof.
The above provision presents the criterion for incorporating the relevant act into the definition of a disposition, and the author adopts that criterion and sets up a determination stage. First, one examines whether the reply is an act of public authority by the administrative agency pertaining to specific facts, and then identifies whether it is an exercise or a refusal. The reason these two stages must be distinguished is, as the premise of the preceding section requires, so that an unsatisfactory explanation itself is not converted into a refusal of a statutory disposition. If the form of an explanation is converted into a refusal disposition, one has skipped the incorporation criterion of the definition.
The criticism that, the more the informal operation of public authority—while avoiding the form of a refusal—grows, the more the formal concept of a disposition empties out relief aims at this point. Even without erasing that adverse aspect, the author's preceding answer stands. The problem lies in the method of fixing object-status by the designation alone, without undertaking confirmation of character.
The relevant facts in the synthetic scene are that there was an application, that Agency B sent a reply, and that the evaluations of Applicant A and Agency B diverge as to that reply. Compared with the preceding condition—the definition of dispositions or other acts—whether the reply was a refusal of public authority that altered legal status cannot be settled from these records alone. It also remains undetermined which records exist among the application, the reply, any change in legal status, the basis for the duty to render a disposition, the elapsed course, and the original disposition and adjudication.
The conclusion this section permits is that, to regard the response to the application as a refusal of a statutory disposition, the incorporation requirements of the definition must first be satisfied. What it does not permit is immediately fixing it as a refusal disposition on the sole circumstance that the content of the answer was not favorable to the applicant. Where that response is no more than mere guidance and has no disposition character, or where there is no statutory duty to render a disposition and thus it is not a statutory omission, the pathway leading to the object of appeal litigation (administrative litigation) closes. How do the provisions of Article 2 and Article 19 of the Administrative Litigation Act support this conclusion?
2.9Application of the Text of the Provisions and the Holdings of Precedents
Not every undesired answer to an application is a disposition. That answer must now be placed on the pathway leading to the object of appeal litigation (administrative litigation). This pathway means the route by which an administrative act is identified as an object to be contested in a lawsuit, and the ground for judging whether that route opens is settled. Only the relevant original provision is used as the ground, and the judgment is not broadened to the reasons for the judgment or other items. Without re-developing the argument of the preceding section, this treats only the application of the provision to the present question.
The relevant original provision for this question is Article 2 of the Administrative Litigation Act. Article 2 paragraph (1) subparagraph 1 thereof provides: the term "disposition or other acts" means "the exercise of public authority as the enforcement of laws pertaining to specific facts by an administrative agency or the refusal thereof, other administrative acts similar thereto (hereinafter referred to as a "disposition"), and adjudication of administrative appeals." The subject indicated by this provision is the administrative agency; the act is the exercise of public authority as the enforcement of laws pertaining to specific facts or the refusal thereof, and administrative acts similar thereto. Without resolving other issues within the provision, it reads only the elements of the definition belonging to this question.
Examining the elements of that provision reveals what the object-status of a refusal asks. This determination is the work of identifying the subject, act, and condition enumerated in the provision, not the work of converting an unsatisfactory explanation itself into an object of litigation. Here lies the reason the two stages must be distinguished. The feeling that a document issued by an administrative agency was unsatisfactory, and the judgment that the document corresponds to a refusal of a statutory disposition, are each different, and only upon reaching the latter does the pathway open.
The counterargument that the more public authority operates in informal ways, the more the formal concept of a disposition empties out relief, aims at such losses and inconveniences. Even so, this counterargument cannot broaden the range of determination under the relevant provision. To convert it into a refusal disposition, it must first be confirmed whether that guidance falls within the statutory definition, and the gap in relief pointed out by the counterargument is dealt with as a condition within that confirmation procedure.
It is confirmed that this reply is a response to the application, but whether that response corresponds to a refusal of a statutory disposition must be examined against the records of the application, the reply, any change in legal status, the basis for the duty to render a disposition, the elapsed course, and the original disposition and adjudication. If the legal effect of the document or the basis for the duty to render a disposition remains unconfirmed, object-status remains undetermined. Undetermined does not mean that relief is impossible; it means a state in which the grounds needed for judgment are still insufficient, and a shortage of materials is not converted into a fixed conclusion. The reply and implementation results collected in actual cases are not present in the scene and are left as they are.
The conclusion this section permits is the determination of the object-status of a refusal in the case identified by the relevant provision. What it does not permit is the judgment of converting adverse guidance into a refusal disposition without confirmation of legal character, and the judgment of extending beyond that provision to other items or the reasons for the judgment.
2.10Fine Distinctions Within the Stage
In this scene, the premise left by the preceding section is that, in accordance with the statutory definition of dispositions, etc., what must be examined is the exercise or refusal of public authority in relation to specific facts and other such acts. Added to this, what must be asked this time is which parts are to be judged separately within that channel. The question whether every failure to obtain the desired answer amounts to a refusal disposition is here narrowed further. The status of a refusal as an object of the lawsuit—that is, the problem of whether a response to an application constitutes the refusal of a statutory disposition—must be fixed as the part that is to be judged.
The statutory language defines the scope of dispositions, etc. Here the subject is the administrative agency, and the act is an administrative action such as the exercise or refusal of public authority as the enforcement of law concerning specific facts. This language does not elevate a dissatisfying explanation itself to a disposition. Accordingly, for Agency B's reply to constitute a refusal, it must be specified as an act having the character of the exercise or refusal of public authority in relation to a specific fact. If it amounts to no more than simple guidance, it does not reach the act indicated by the language.
The conclusion of this section, which joins this statutory language with the premise set out above, is to confine the detailed distinctions within the step to the case where they operate, the case where they are blocked, and the case where they remain undetermined. Even within the same judgment of status as an object of the lawsuit, two things must be distinguished. One is the case where an administrative action corresponding to a disposition, etc., or an omission for which there is a legal duty to dispose in response to the application, is specified; the other is the case where the agency's reply amounts to no more than simple guidance and therefore lacks the quality of a disposition, or where there is no legal duty to dispose and it is therefore not a statutory omission. The criterion that an action for revocation is directed at dispositions, etc. (Article 19 of the Administrative Litigation Act) also operates on the premise of the same distinction. If the earlier step opened up the definition, this step is charged with the role of comparing the character of the act within it. If a new step is added here, or new requirements are appended, the point of judgment is blurred.
The strongest counterargument targets the loss left behind by power that evades form. A reply in the name of guidance effectively ends the application, and the disadvantage suffered by Applicant A remains in place. The concern that the more public authority operates through informal means, the more the formal concept of disposition empties out relief, has its value. Even so, the author's answer holds. While not erasing the inconvenience pointed out by the counterargument, it retains the condition that the character of the refusal as defined by the statutory text must first be confirmed. The risk of evading form cannot serve as a reason to omit the procedure for confirming character.
In the synthetic scene, the facts belonging to this question are nothing but the reply and the contentions of both sides. Whether the fact that Agency B calls the reply a mere guidance falls into the blocked case—that is, the case where there is no quality of a disposition, or where there is no legal duty to dispose and it is therefore not a statutory omission—must be determined by the records. What is to be taken as the records for judgment are the application, the reply, the change in legal status, the basis of the duty to dispose, the course of events, and the original disposition and adjudication. The scene has fixed neither year nor amount, so such values cannot be filled in. If the legal effect of the document or the basis of the duty to dispose is not confirmed, the matter remains undetermined. Undetermined does not immediately mean that relief is unavailable.
The conclusion permitted by this section is narrow. If the reply is specified as an act constituting the refusal of a statutory disposition, the status of the refusal as an object of the lawsuit is opened; if it amounts to no more than simple guidance and lacks the quality of a disposition, or if there is no legal duty to dispose, it is blocked. If it cannot be confirmed, it remains undetermined. What is not permitted here is elevating a dissatisfying explanation itself to a refusal disposition, and a judgment that treats delay in processing as unlawful omission forthwith is also not settled at this point.
2.11Synthesis of Effectiveness, Blockage, and Undetermination
What was confirmed in the preceding step is that, in accordance with the statutory definition of dispositions, etc., what must be examined is the exercise or refusal of public authority in relation to specific facts and other such acts. In the scene now presented, Applicant A regards Agency B's reply as a disposition, while the agency contends that it is mere guidance. Even though the fact that the content of the reply was not favorable to the applicant is confirmed, whether that reply immediately becomes an object of the lawsuit must be determined separately. The question posed here is whether every failure to obtain the desired answer amounts to a refusal disposition. This question addresses the status of a refusal as an object of the lawsuit, namely the problem of whether a response to an application constitutes the refusal of a statutory disposition.
The first statutory language corresponding to this question determines how far the object of an action for revocation extends. Article 19 of the Administrative Litigation Act declares, “An action for revocation shall be filed against dispositions, etc.” (Article 19 of the Administrative Litigation Act). In this language, ‘dispositions, etc.’ is an already defined statutory concept, and its definition is assigned to Article 2 of the Administrative Litigation Act. Paragraph (1), subparagraph 1 of the same Article provides: “‘Dispositions, etc.’ means the exercise or refusal of public authority by an administrative agency as the enforcement of law concerning specific facts, and any other administrative action equivalent thereto (hereinafter “disposition”), and adjudications on administrative appeals.” (Article 2 of the Administrative Litigation Act). Where a reply document is given, what is to be examined is not the form or wording of the document but whether that act corresponds to such an action.
The two provisions connect to form a single criterion of judgment. Article 19 places only dispositions, etc. before the door of the lawsuit, and Article 2(1)1 determines the key to that door. Accordingly, for a response to an application to be opened up, an administrative action corresponding to a disposition, etc., or an omission for which there is a legal duty to dispose in connection with the application, must be specified. Conversely, where the agency's reply amounts to no more than simple guidance and lacks the quality of a disposition, or where there is no legal duty to dispose and it is therefore not a statutory omission, that channel is blocked. The reason the two steps must be distinguished here is that the objects of judgment differ. The earlier step asks whether the responsive act itself is a statutory action; the later step asks whether, if it is not, a legal duty to dispose arises separately. If the earlier and the later are mixed together, ‘a dissatisfying explanation’ and ‘the refusal of a statutory disposition’ are treated as one and the same. The counterargument targets the loss this distinction entails: that if an administrative agency avoids the form of a refusal, relief may become difficult. This observation—that the more public authority operates through informal means, the more the formal concept of disposition empties out relief—gains force in procedures where a document conveying unfavorable content effectively ends the application even though it does not bear the name of a refusal. From the applicant's standpoint, whether the wording says guidance or refusal, the desired handling is not obtained, and unless a new document is received, the ground on which to litigate is also narrowed. The settled answer is that the channel is opened only where it is confirmed that the document is an administrative action corresponding to a disposition, etc., or that there is an application premised on an omission for which a legal duty to dispose exists; it does not convert unfavorable guidance whose character is unconfirmed into a refusal disposition of its own accord. Even if the guidance effectively concludes the application, the quality of a disposition is not established by that fact alone, and the disadvantage pointed out by the counterargument remains unremoved.
The facts confirmed in the synthetic scene go no further than this. On this scene alone, the legal effect of the reply document and the basis of a legal duty to dispose in response to the application have not been confirmed. Even though the course of events up to the submission of the application and the arrival of the reply is settled, whether the reply brought about a change in legal status, and whether there was an original disposition and an adjudication, are not in this scene. Accordingly, what can be judged now is only the marking of the undetermined zone. Where the legal effect of the document or the basis of the duty to dispose is not confirmed, its status as an object of the lawsuit remains undetermined. It should also be made clear that if only one condition of comparison is changed, the outcome diverges.
What is permitted in this section is narrow. Where a response to an application is specified as an administrative action corresponding to a disposition, etc., or where an omission for which there is a legal duty to dispose in connection with the application is specified, the channel reaching the object of appeal litigation (administrative litigation) is opened. Where the agency's reply amounts to no more than simple guidance and lacks the quality of a disposition, or where there is no legal duty to dispose and it is therefore not a statutory omission, that channel is blocked. A document as to which it is not confirmed which of the two applies is left undetermined, and it is not immediately recorded as a case of unavailable relief merely because there is no material. It is not permitted to read every reply as a refusal disposition on the sole ground that the desired answer was not obtained; nor is it within the scope of this section to assert definitively that the channel is closed on the sole ground of the agency's claim that it was guidance.
2.12Conclusion Carried Over to the Next Section
Up to the preceding step, the analysis went no further than confirming the criterion that, in accordance with the statutory definition of dispositions, etc., what must be examined is the exercise or refusal of public authority in relation to specific facts and other such acts. Now, in the scene where Applicant A regards Agency B's reply as a disposition while the agency contends that it is mere guidance, the question remains whether every failure to obtain the desired answer amounts to a refusal disposition. If one attempts to determine the object of the lawsuit without answering that question, one falls into the error of deciding status as an object of the lawsuit by the outward appearance of the reply alone. The status of a refusal as an object of the lawsuit, treated in this section, means the problem of whether a response to an application constitutes the refusal of a statutory disposition.
The basis for this question is the language of Article 2 of the Administrative Litigation Act. Article 2(1)1 defines: “‘Dispositions, etc.’ means the exercise or refusal of public authority by an administrative agency as the enforcement of law concerning specific facts, and any other administrative action equivalent thereto (hereinafter “disposition”), and adjudications on administrative appeals.” This definition limits the subject of dispositions, etc. to administrative agencies, the object to acts concerning specific facts, and the form of the act to the exercise or refusal of public authority and administrative actions equivalent thereto. For a reply to constitute the refusal of a disposition, the mere fact that the document is a response to an application is insufficient; the character of being an act of refusal in the enforcement of the matter applied for must also be confirmed. This definition is used not to add requirements to a disposition but to draw out and explain a distinction already contained in the statutory language.
This statutory language and the other formal provisions on the object are judgments at different steps and must not be bundled together. Article 19 of the Administrative Litigation Act declares: “An action for revocation shall be filed against dispositions, etc.; provided, That in the case of an action for revocation of adjudication, only where the case is based on an illegality inherent in the adjudication itself.” This Article 19, which determines the object of an action for revocation, takes as its premise the dispositions, etc. already extracted by the foregoing definition. Whether there is a refusal disposition—that is, whether a response to an application is an act of refusal falling within the statutory definition—is the first step in fixing status as an object of the lawsuit, and what kind of lawsuit is to be attached to the object thereby produced is the second step. If the conclusion reached at the former step is replaced merely by the form of the latter, a dissatisfying explanation whose status as an object has not been confirmed immediately takes its place as an object of an action for revocation.
The strongest counterargument squarely confronts the real inconvenience this distinction entails. It is the contention that if an administrative agency avoids the form of a refusal, relief may become difficult. If an agency, without using the word refusal, has effectively cut off the application by way of a reply, then as an applicant the very channel of confronting a refusal disposition is blocked. This criticism—that the more public authority operates through informal means, the more the formal concept of disposition empties out relief—points to an inequality in which the party who observes the form is advantaged. Nevertheless, the answer does not waver. This answer does not erase the unfavorable aspect of the counterargument; the fact that relief may in practice become difficult remains. But one cannot, as a means of resolving that difficulty, skip the confirmation of legal character; that is the boundary of this section.
In the synthetic scene, only this much is settled: Applicant A regards Agency B's reply as a disposition, and the agency contends that it is mere guidance. This fact alone does not determine whether the reply is an act of refusal falling within the statutory definition or an explanation having no legal effect. The Records to be used in judgment are fixed as the application, the reply, the change in legal status, the basis of the duty to dispose, the course of events, and the original disposition and adjudication. Since no year, amount, or commencement date has been set in the scene, the relevant figures cannot be determined.
The conclusion permitted by this section is that the mere fact that the desired answer was not obtained does not specify a refusal disposition, and that confirmation must be undergone as to whether the act is one of refusal falling within the statutory definition. Conversely, the conclusion not permitted by this section is to change the legal character of the reply into a refusal disposition on the sole ground that it was unfavorable and disappointing. So long as the legal effect of the document or the basis of the duty to dispose remains unconfirmed, status as an object of the lawsuit also remains undetermined. Undetermined does not mean that relief is impossible; it means that on the present records this question has not been closed. Does delay in processing forthwith make it an unlawful omission?