Summary
Only by confirming together an application, a reasonable period, and a statutory duty to make a certain disposition does one reach the statutory definition of an omission.
3.1The Standard by Which the Path Opens
The mere fact that one has waited does not determine who was obliged to do what. Applicant A regards Agency B's reply as a disposition, whereas the agency maintains that it is merely guidance. As stated above, what must first be identified is whether the conduct constitutes a refusal of a disposition as prescribed by law, and it must be distinguished from the unsatisfactory explanation itself. Does a delay in processing forthwith make out an unlawful omission? Since delay alone identifies nothing, one must ask what the criterion is for opening the channel of this remedy.
The relevant provision is Article 2 of the Administrative Litigation Act. The same Article provides: "2. 'Omission' means a case in which an administrative agency, despite having a legal duty to make a certain disposition upon a party's application within a reasonable period of time, fails to do so." Here the administrative agency is the subject that received the application, the party is the subject that filed the application, and what is to be done is a certain disposition.
That definition reaches an omission only when four elements are confirmed together. There must be an application; there must be a legal duty to make a certain disposition upon that application; a reasonable period for performing that duty must have elapsed; and in fact no disposition must have been made. When the demanded relief, the party, and the conditions are specified in the claim for relief, and the right of the chosen form of action can be defended, the entrance to this remedy opens.
The strongest counterargument targets the point that, since the reasonableness of the period is unclear, delay may be tolerated. It is also pointed out that the more public power operates through informal means, the more the formal concept of a disposition empties out remedies, and that this is a loss. Even so, a mere failure to respond cannot be established as an omission without confirming the application and the legal duty. Where the communication is no more than guidance and lacks the character of a disposition, or where there is no legal duty to make a disposition and hence no statutory omission, the channel is closed.
What can be confirmed in the synthetic scene is only the application, the reply, and the dispute over the legal character of that reply. The items to be examined in the records are the application, the reply, changes in legal status, the grounds for the duty to dispose, the lapse of time, and the original disposition and the ruling. If the legal effect of the document or the basis for the duty to dispose cannot be confirmed, the matter remains undetermined. If the guidance is confirmed to be a registration disposition that actually sets legal status, the assessment of whether the conduct constitutes a disposition subject to litigation is revised.
What this section permits is the judgment that, where the elements reaching the statutory definition of omission are identified and the claim for relief is fixed, the entrance to this remedy opens. What it does not permit is the judgment that the single fact of delayed processing forthwith establishes an unlawful omission. Whether a registration connected with a private right may also be a disposition is not answered here and now.
3.2The Conditions That Block Relief
The preceding stage of analysis arrived at the point that one must identify whether the conduct constitutes a refusal of a disposition as prescribed by law, and distinguish it from the unsatisfactory explanation itself. It then asks: if the mere fact of waiting does not determine who was obliged to do what, one must confirm whether this means that an omission cannot be established by lateness alone. To that end, the conditions required by the statutory definition of omission must be set out and examined one by one.
Article 2 of the Administrative Litigation Act defines omission as "a case in which an administrative agency, despite having a legal duty to make a certain disposition upon a party's application within a reasonable period of time, fails to do so." The subject indicated by this wording is the administrative agency, and the object is the party's application. The conduct is the state of not making a certain disposition, and before it lie the application, the reasonable period, and the legal duty to make the disposition, together.
The above wording is read as requiring the application, the reasonable period, and the legal duty to make a certain disposition to be confirmed together before the statutory definition of omission is reached. Therefore, for a reply made by Agency B to amount to a statutory omission, it must first be separately identified whether that reply is an act refusing to make a certain disposition, and whether Agency B was under a legal duty to make a certain disposition upon Applicant A's application. The wording analysis of the preceding paragraph and the application in this paragraph are distinct. The wording is an enumeration of requirements, whereas the application is a judgment of whether those requirements exist in the scene. If the two are merged, one requirement becomes blurred.
The strongest counterargument lies in the point that, since the reasonableness of the period is unclear, delay may be tolerated. The criticism follows that the more public power operates through informal means, the more the formal concept of a disposition empties out remedies. The discomfort and loss suffered when an agency passes the time while doing nothing are the real values at which the counterargument is aimed. The point is that the possibility of delay identified by the counterargument is retained, but the confirmation of the statutory requirements is not bypassed.
What can be confirmed in the synthetic scene is only Agency B's reply, Applicant A's view that this reply is a disposition, and Agency B's contention that it is merely guidance. Whether the reply actually established a legal status, what the basis for the duty to dispose was, and how much time elapsed between the application and the reply are not determined by this scene alone. If the guidance is confirmed to be a registration disposition that actually sets legal status, the assessment of whether the conduct constitutes a disposition subject to litigation changes. Since the legal effect of the reply and the basis for the duty to dispose are not confirmed at present, the judgment is left undetermined.
What this section permits is the point that, where the statutory requirements of an omission are identified, the channel of remedy opens. Conversely, where the agency's communication is no more than guidance and lacks the character of a disposition, or where there is no legal duty to make a disposition so that there is no statutory omission, if any one of the statutory requirements is unmet, the channel is closed. This boundary — not establishing an omission on the basis of a mere failure to respond — is the close of this section.
3.3The Boundary That Remains When There Is No Data
In the scene where Applicant A regards Agency B's reply as a disposition while the agency contends that it is merely guidance, the question this time is whether an omission is constituted by delay itself alone. The length of the time waited does not by itself reveal of what legal duty the administrative agency's failure to act is a non-performance. Therefore, what the subject to be named an omission is must first be determined.
The relevant wording for this question is in Article 2 of the Administrative Litigation Act. Article 2, paragraph (1), subparagraph 2 of that Article defines: "2. 'Omission' means a case in which an administrative agency, despite having a legal duty to make a certain disposition upon a party's application within a reasonable period of time, fails to do so" (Article 2 of the Administrative Litigation Act). Here the subject is the administrative agency, the conduct is the making of a certain disposition upon a party's application, and the conditions are the existence of a legal duty to make that disposition within a reasonable period and the non-performance of that duty. This definition requires the application, the reasonable period, and the legal duty to make a certain disposition together, and a single element alone does not reach the statutory definition of omission.
The reason the provision requires several elements together is that the fact of delay and the legal evaluation of non-performance of a duty lie at different stages. That the agency's reply took a long time is a matter of lapse of time; whether that reply was a disposition made pursuant to a statutory duty becomes a matter of duty. Matters for which the materials of judgment cannot be identified because neither the legal effect nor the basis for the duty to dispose has been confirmed are, as the conclusion of this section, left undetermined, distinguished from an impossibility in which no confirmed result exists. Undetermined means a state in which there is as yet no material by which to determine anything, whereas impossibility means a state that has been confirmed but does not satisfy the requirements for constitution; the two are not conflated.
This does not mean that delay should be hastily tolerated. The strongest counterargument targets the point that, since the reasonableness of the period is unclear, delay may be tolerated, and further, that the more public power operates through informal means, the more the formal concept of a disposition empties out remedies. Nor can it be erased that, for the person whose reply was late, the loss and discomfort remain that the procedure did not function properly. Yet the answer is maintained that a mere failure to respond cannot be established as an omission without confirming the application and the legal duty. The way to prevent the abuse of evading responsibility by invoking form lies not in inserting an unconfirmed duty, but in the procedure of finding the basis and identifying it.
The facts that can be confirmed in this scene are only whether A filed an application, B's reply, and the two sides' dispute over whether that reply is to be regarded as a disposition or as mere guidance. Contrasting the conditions of the provision with these, it must be separately judged whether there was an application, whether a reasonable period had elapsed, and whether there was a legal duty to make a certain disposition. So long as the legal effect of the reply and the basis for the duty to dispose are not confirmed, whether an omission is constituted cannot be determined from this scene alone. No year or starting date is set in the scene, so no definitive statement is made as to the reasonableness of the period either. It has only been settled as record items that the application, the reply, changes in legal status, the grounds for the duty to dispose, the lapse of time, and the original disposition and the reconsideration decision are to be examined; the actual records have not been collected.
Accordingly, the conclusion permitted by this section is to leave undetermined those matters for which no material has been identified, and to judge whether there is an omission once the confirmed material reaches the requirements. The conclusion not permitted is the manner of immediately establishing a mere failure to respond as an unlawful omission without confirmation of the application and the legal duty.
3.4The Records Needed for Determination
It proceeds on the premise that one must identify whether the conduct constitutes a refusal of a disposition as prescribed by law, and distinguish it from the unsatisfactory explanation itself. What this stage addresses is the question placed behind that identification, namely whether an omission is constituted by the circumstance of delay alone, and what records are required in order to judge such a stage. This question asks whether the feeling that processing was late can be carried over as it stands into a legal conclusion.
Article 2, paragraph (1), subparagraph 2 of the Administrative Litigation Act defines: "2. 'Omission' means a case in which an administrative agency, despite having a legal duty to make a certain disposition upon a party's application within a reasonable period of time, fails to do so" (Article 2 of the Administrative Litigation Act). The subject indicated by this wording is the administrative agency, the conduct is the performance of a certain disposition upon a party's application, and the conditions are the lapse of a reasonable period and the existence of a legal duty to make that disposition. The circumstance that there was an application, and the circumstance that there was a reply to that application, do not by themselves reach this definition. On what basis the legal duty arises, and what disposition is the object of that duty, must together be identified.
That the requirements of the wording must be confirmed together before the statutory definition of omission is reached means that the fact of delay and the confirmation of the legal duty must be examined separately. The stage is judged only on the basis of the materials recorded in the application, the reply, changes in legal status, the grounds for the duty to dispose, the lapse of time, and the original disposition and the reconsideration decision. The stage judgment is made only on the established records, and gaps in the records are not filled by conjecture. Here, by 'records' is meant the materials confirmed in the submission of the application, the agency's reply, the change in the party's legal status resulting from that reply, the grounds on which the duty to dispose arises, the lapse of time since the application, and the original disposition and the reconsideration decision upon it. The single circumstance of non-response does not reveal which requirement of an omission has been satisfied.
The counterargument that, since the reasonableness of the period is unclear, delay may be tolerated touches on the concern that the formal concept of a disposition empties out remedies. The more public power operates through informal means, the more, it is said, requiring only the form of a disposition evidenced in documents turns a blind eye to the inconvenience and loss suffered by citizens. Yet a mere failure to respond cannot be established as an omission without confirming the application and the legal duty. Even if it remains unconfirmed on the records how long the reasonable period is, the way to fill that uncertainty is not to skip the confirmation of the legal duty. While acknowledging the gap in remedies pointed out by the counterargument, the conclusion that binds the basis for determination to the established records is maintained.
The facts relevant to this question in this scene are that there was a reply to the application and that the parties' views diverge as to the legal nature of that reply. If the reply is a document that alters legal status, it may become a record pertaining to the object of the duty to dispose, but if it is merely guidance, it is not identified as a disposition. Since the legal effect of the reply is not confirmed by the scene alone, this item falls under the case where neither the legal effect of the document nor the basis for the duty to dispose is confirmed, and remains undetermined.
What this section permits is judging the stages of omission by comparing the six items of the established records, and leaving unfilled places in the records undetermined. What is not permitted is establishing an unlawful omission on the sole circumstance that processing was late, or concluding an omission from non-response without confirmation of the legal duty.
3.5Circumstances That Change the Decision
In the scene where Applicant A regards Agency B's reply as a disposition while the agency contends that it is merely guidance, what must now be asked is whether the reply called guidance is an act constituting a disposition and, together with that, whether an omission is constituted merely by the circumstance that the processing after that reply was delayed. This question, starting from the earlier step of identifying acts that constitute a refusal of a disposition as prescribed by law and distinguishing them from the unsatisfactory explanation itself, now addresses the judgment surrounding delay.
The statutory wording corresponding to this question is in Article 2, paragraph (1), subparagraph 2 of the Administrative Litigation Act. That wording defines: "2. 'Omission' means a case in which an administrative agency, despite having a legal duty to make a certain disposition upon a party's application within a reasonable period of time, fails to do so". The subject indicated by this wording is the administrative agency, the conduct confirmed is the performance of a certain disposition upon a party's application, and the conditions leading to an omission are that the application, the reasonable period, the confirmation of a legal duty to make a certain disposition, and the non-performance of that duty lie together. Other issues handled by the provision lie outside the scope of this definition.
Under this definition, the application, the reasonable period, and the legal duty to make a certain disposition must be confirmed together before the statutory definition of omission is reached. Here an omission means the state of not making, for a reasonable period, the disposition that is legally to be made upon an application. The reason for separating these two judgments is that what was not identified in the earlier stage of identification as conduct constituting a refusal of a disposition as prescribed by law cannot be placed, in the later stage of judging omission, as the disposition that is the object of a duty. If the unsatisfactory explanation itself is left as it stands, what the agency has a duty to do remains undetermined and only delay remains.
The counterargument that, since the reasonableness of the period is unclear, delay may be tolerated aims at a loss that is considerable in itself. If the criterion for a reasonable period is not clear, the agency can put off processing without offering an explanation that commands acceptance, and the party is left to continue waiting without knowing what has become of a right. The observation that the more public power operates through informal means, the more the formal concept of a disposition empties out remedies, is aimed at this inconvenience. While the disadvantage identified by the counterargument is retained, the establishment of an omission lacking a basis in duty is blocked right there.
The facts that can be confirmed in the synthetic scene are only that Applicant A regards Agency B's reply as a disposition and that Agency B contends it is mere guidance. This fact becomes the starting point when the records of the application and the reply are laid side by side, while changes in legal status, the grounds for the duty to dispose, the lapse of time, and the original disposition and the ruling have not been confirmed. If, by the specified change, the guidance is confirmed to be a registration disposition that actually sets legal status, the assessment of whether the conduct constitutes a disposition subject to litigation is revised, the existing judgments of blocking and effectiveness are discarded, and the stages are judged anew from the beginning. However, so long as the legal effect of the document and the basis for the duty to dispose remain unconfirmed, no judgment can be made from the scene alone, and this item remains undetermined.
Accordingly, the conclusion permitted by this section extends to the point that only after the application and the legal duty are identified and the lapse of a reasonable period is confirmed does one reach the statutory definition of omission. By contrast, this section does not permit establishing a statutory omission on the fact of delay alone, or deriving a duty to dispose from a mere failure to respond.
3.6The Strongest Counterargument and the Answer
In the scene where Applicant A regards Agency B's reply as a disposition while the agency contends that it is merely a simple notice, the time of waiting alone does not reveal what the agency's obligation with respect to that reply was. The questions that remain are how far a delay may be tolerated on account of such an uncertain period, and whether, even within the scope of that tolerance, a failure to respond can at once be designated as inaction. The premise set out by the preceding section—that one must specify whether the conduct constitutes an act amounting to a refusal of a disposition required by law, and distinguish it from a merely unsatisfactory explanation itself—is taken here only as the starting point of this question. Whether the establishment of inaction is a matter that may be judged separately as to a substantial period and as to a legal obligation is decided here. However much delay may be accommodated, it must be made clear that such accommodation does not alter the legal character of a failure to respond.
The source text corresponding to this question is Article 2, paragraph (1), subparagraph 2 of the Administrative Litigation Act. Its text defines it as follows: "2. 'Inaction' refers to the case where an administrative agency, despite having a legal obligation to make a certain disposition upon a party's application within a reasonable period, fails to do so." The subject indicated by this sentence is the administrative agency, the point of departure of its conduct is the party's application, and the result is the state of not having made a certain disposition. There are, however, conditions attached together in reaching that definition, namely that it be within a reasonable period, and that there exist a legal obligation to make a certain disposition. Thus, on the text alone, inaction is a concept that comes into being only when the occasion of an application, the temporal requirement of a reasonable period, and the ground requirement of a legal obligation overlap. Other paragraphs of the Article, and other requirements, are not expounded in an extended manner at this point.
Connecting the above text with the present conclusion yields the determination that a mere failure to respond cannot be established as inaction without confirmation of the application and of the legal obligation. This determination cannot be maintained unless two stages are distinguished. First is the stage of discerning whether a particular act constitutes an act amounting to a refusal of a disposition required by law; second is the stage of discerning whether it amounts to no more than a merely unsatisfactory explanation, distinct from such a refusal. The mere fact that time has elapsed does not settle in which of the two stages the matter is to be placed. If a reasonable period is unclear, room arises for tolerating the delay, but that tolerance does not reverse whether there was a disposition obligation or whether there was an application. So long as the standard is observed that the legal definition of inaction is reached only when an application, a reasonable period, and a legal obligation to make a certain disposition are confirmed together, one does not fall into the expediency of establishing inaction from the mere failure to respond. In the end, an uncertain period is a circumstance that defers the conclusion, not a circumstance that dispenses with the requirements.
The point that a certain degree of delay may be tolerated where the substantiality of the period is unclear touches upon the point targeted by the counterargument that the more public power operates by informal means, the more the formal concept of a disposition empties out relief. At the center of that counterargument is the loss whereby the pressure or refusal effect contained in the content of the agency's reply escapes under the mere label of "simple notice," and the applicant, though in a state where the door has effectively been closed, cannot find a route to relief on account of formal requirements. Further, the fact that in following form, the inconvenience of the applicant who bore the delay and the temporal cost in the meantime are pushed outside legal evaluation also forms an unfavorable aspect of the counterargument, and this point is not erased. Yet the scope of what is answered in response is fixed. The conclusion that a mere failure to respond cannot be established as inaction without confirmation of the application and of the legal obligation is maintained. That is to say, the way of filling the gap in relief pointed out by the counterargument must not be one that runs ahead of the legal definition of inaction or omits the requirements.
In this scene, the facts relevant to the present question are that Applicant A regards Agency B's reply as a disposition while Agency B contends that it is a simple notice, and that it has not been confirmed whether any change in legal status actually occurred by reason of that reply. Contrasting these facts with the foregoing conditions, one cannot reach the establishment of inaction while it remains unconfirmed together whether there was an application and whether there was a legal obligation to make a certain disposition in response to it. At the same time, the mere fact that the application, the reply, the change in legal status, the ground of the disposition obligation, the lapse of time, and the original disposition and adjudication remain unconfirmed cannot overturn a settled determination. Where the legal effect of the document or the ground of the disposition obligation is unconfirmed, the matter remains undetermined.
The conclusion permitted in this section remains within the scope that, even if there is room to tolerate delay, a mere failure to respond cannot be established as inaction without confirmation of the application and of the legal obligation. Conversely, the circumstance alone that the period of waiting was long cannot be taken as meaning that the disposition obligation and its refusal have been confirmed together. Even if a substantial period is unclear, that uncertainty does not substitute for the requirements, nor does the outward appearance of a failure to respond lead at once to the conclusion of statutory inaction. Any determination that goes beyond the character of a notice document whose disposition quality is disputed, and any determination that newly creates a ground for a disposition obligation, also lie outside the conclusion available here.
3.7The Link to the Application and the Dispositive Part
Even while accepting these premises, it remains a problem whether one can say that, when an administrative agency's handling has become conspicuously late, unlawful inaction is established by that delay alone. The circumstance of delayed handling itself does not substitute for a determination of who bears a legal obligation to do what, and so it must be clarified what conditions must be met before delay is called inaction. The present question is how to fit the sense that handling has been delayed to the statutory definition.
Article 2, paragraph (1), subparagraph 2 of the Administrative Litigation Act defines inaction as follows: "'Inaction' refers to the case where an administrative agency, despite having a legal obligation to make a certain disposition upon a party's application within a reasonable period, fails to do so." (Article 2 of the Administrative Litigation Act) In this text, the subject is the administrative agency, and the conduct is the failure to make a certain disposition. The conditions placed before it are the party's application, the lapse of a reasonable period, and the existence of a legal obligation to make a certain disposition. The three are requirements placed side by side in the text, and the definition of inaction is not satisfied by any one of them alone. The Article does not address issues of other items, and the scope corresponding on this occasion is only the text of this subparagraph 2.
That text and the conclusion of this section connect as follows. The application fixes the starting point of the determination of inaction at the party's demand upon the administrative agency; the reasonable period marks the point in time at which a response to that demand should already have been given; and the legal obligation fixes the content and ground of the disposition to which the response must be made. The reason these three must be confirmed in distinction from one another is that, even if the first two are confirmed, the definition of inaction is not reached where there is no legal obligation, and even if the legal obligation is confirmed, the same conclusion does not follow if the conditions of the application or the period are missing. This distinction is an enumeration of the requirements that constitute the definition, not an operation that adds new legal effects to the items of confirmation.
The more public power operates by informal means without an official expression of refusal, the more relief is emptied out by the formal concept of a disposition alone; this is the loss targeted by this counterargument. Where, after an application, no reply of any kind arrives and only time passes, if a substantial period is difficult to gauge separately, the applicant has in fact no choice but to wait and bears that inconvenience as it stands. The unfavorable aspect of the toleration of delay pointed out by the counterargument remains as it is, but is maintained only to the extent that a determination seeking to establish inaction does not come into being unless it passes through the conditions of confirming the application and the legal obligation.
In the synthetic scene, the facts relevant to the present question are as follows. What is confirmed in this scene is the conflict over the legal nature of the document, while the existence of an application, the lapse of a reasonable period, and the ground of a legal obligation to make a certain disposition are not confirmed within the scene. Accordingly, the issue itself of whether the reply can be regarded as a disposition lies outside the scope of this section, and on the remaining facts alone one cannot say that the definition of inaction has been satisfied. The state in which the legal effect of the document or the ground of the disposition obligation remains unconfirmed stays undetermined.
The conclusion permitted by this section is the determination that the legal definition of inaction is reached when an application, a substantial period, and a legal obligation to make a certain disposition are confirmed together. The conclusion not permitted is a determination that establishes inaction from the circumstance that handling was delayed or from a failure to respond alone, and a determination that hastens that establishment while the ground of the legal obligation or the existence of an application remains unconfirmed. The record that the administrative agency did not respond belongs only to the list of matters to be verified, and does not substitute for the requirements for the establishment of inaction.
3.8The Scope This Section Undertakes
The discontented applicant asks: if handling is delayed, is it at once unlawful inaction? The answer is no. One must first establish what the legal definition of inaction requires. The issue is not the delay in handling itself, but whether the application and the disposition obligation were established together. Issues of criminal substantive law lie outside the scope on this occasion.
The elements required by the Article are rendered precisely. Article 2, paragraph (1), subparagraph 2 of the Administrative Litigation Act provides: 2. "'Inaction' refers to the case where an administrative agency, despite having a legal obligation to make a certain disposition upon a party's application within a substantial period, fails to do so." (Article 2 of the Administrative Litigation Act) According to this text, the subject is the administrative agency, and the object is the party's application. The conduct is the failure to make a certain disposition, and the condition is that a substantial period and a legal obligation be established together. Other items of the Article are outside the scope of this section.
What this Article requires is not an enumeration of circumstances but stages of determination. A mere failure to respond shows only the fact of an application. If there is no ground for a legal obligation to make a disposition, the definition of inaction is not reached. If a substantial period has not elapsed, that too is a limitation in the same direction. If these two stages are mixed, the object of the lawsuit would be fixed by the mere circumstance that documents were filed and no response came. The question "if handling is delayed, is it at once unlawful inaction?" is an expression that disregards the conditions of this definition.
The strongest counterargument targets the point that an inadequate assessment of substantiality in fact leaves delay unaddressed. The more public power operates by informal means, the more the formal concept of a disposition empties out relief. If the agency's reply is disguised as an explanation and a notice takes the place of a substantive disposition, the applicant readily finds himself turned back at the threshold of appeal litigation (administrative litigation). Doubts as to substantiality do not constitute a ground for omitting the verification of conditions. What remains is the proof of the legal obligation and of the substantial period, and the inconvenience pointed out by the counterargument is dealt with through the verification of the conditions.
This confrontation turns on the point that whether the document has disposition quality cannot be determined from the scene alone. If Agency B's reply did not newly set a legal status and stopped at a mere explanation, it is difficult to specify the disposition upon an application that would be the beginning of inaction. If the reply is confirmed to be a registration disposition, the determination of its status as an object changes. The records to be verified are the application, the reply, the change in legal status, the ground of the disposition obligation, the lapse of time, and the original disposition and adjudication. Since the scene fixes no year, amount, or commencement date, the lapse of a substantial period cannot be asserted at this point either.
The conclusion permitted by this section is narrow. Inaction equals the state of not having made, within a substantial period, the disposition that is legally to be made upon an application, and only after the conditions of this definition are verified one by one does the passage leading to the objects of appeal litigation (administrative litigation) open. The fact of an application or the waiting time alone does not establish inaction. At the same time, the fact that the ground of the legal obligation and the legal effect of the document remain unconfirmed is undetermined and does not mean immediate unavailability of relief. Whether a registration connected with a private right can become a disposition is likewise not a matter to be verified together within this determination.
3.9Application of the Text of the Provisions and the Holdings of Precedents
The question whether delayed handling at once amounts to unlawful inaction requires one to specify whether the conduct constitutes an act amounting to a refusal of a disposition required by law, and to determine it in distinction from a merely unsatisfactory explanation itself. The issue now surrounding this point is the determination of whether the matter qualifies as an object, which varies according to whether the agency's reply is an answer to the application or stops at a mere notice. To render this determination, one cannot be satisfied with the content of the reply alone; there must be a standard as to what that reply has failed to do. The text that provides this standard is found in Article 2 of the Administrative Litigation Act. Yet how this text must be read so as to open the passage leading to the objects of appeal litigation (administrative litigation) is the core of the present question.
Article 2 of the Administrative Litigation Act provides that "'Inaction' refers to the case where an administrative agency, despite having a legal obligation to make a certain disposition upon a party's application within a substantial period, fails to do so." (Article 2 of the Administrative Litigation Act) In this text, inaction is not established by itself. First, there must be the fact that the administrative agency received a party's application; next, there must be a legal obligation to make a certain disposition upon that application within a substantial period; and finally, there must be the fact that the administrative agency failed to perform that obligation. If any one of the three is lacking, the legal definition of inaction is not reached. Accordingly, this text is read not as enumerating the requirements for the establishment of inaction, but as meaning that a state in which the respective requirements are satisfied simultaneously is called inaction.
When this text is applied to the passage leading to the objects of appeal litigation (administrative litigation), the criterion of the determination becomes only the text within the scope of that source. It is not extended by the reasons for the judgment or by the content of other paragraphs. Why this distinction is necessary is shown by the enumeration of requirements in the preceding paragraph. An application, a substantial period, and a legal obligation to make a certain disposition each require an independent procedure of verification, and if even one of them is unconfirmed, it cannot be regarded as reaching the legal definition of inaction. Thus, the determination of whether the matter qualifies as an object does not remain at the impression that the reply itself was disagreeable or that the answer was late, but is the work of verifying whether the requirements demanded by the text have been met one by one. This verification takes the text of the Article as its standard. If it is extended on other grounds, the criterion of judgment wavers, and the common measure for designating which administrative act is established as inaction disappears.
Nevertheless, a counterargument is raised that, since the substantiality of the period is unclear, the delay can be tolerated. The loss targeted by this concern is real. If, although the handling continues to be late, the door of relief is closed on the sole ground that the requirements of the text were not satisfied, the applicant is forced to wait without receiving any help at all. Yet the foregoing answer acknowledges this without changing its direction. The circumstance that the delay is untrustworthy is regrettable, but to establish inaction, it must first be confirmed whether the application required by the text existed and whether there was a legal obligation to make a disposition. If inaction is asserted without this verification, the result is to widen the qualification as an object arbitrarily outside the standard set by the text.
Returning to the synthetic scene, this section now draws out only the facts relevant to this question. What is confirmed in this scene is only the existence of the reply and the divergence of the two sides' assessments. Whether an application existed, whether a substantial period elapsed, the ground of a legal obligation to make a certain disposition, and whether the reply actually altered a legal status are not determined by the scene. On the records, one must examine the application, the reply, the change in legal status, the ground of the disposition obligation, the lapse of time, and the original disposition and adjudication. Accordingly, whether the reply is a disposition or a simple notice remains undetermined.
Outlining the boundary between the conclusion permitted by this section and the conclusion not permitted, it is as follows. What is permitted is to judge the passage leading to the objects of appeal litigation (administrative litigation) on the sole basis of the text of that source, and the measure of that judgment is the work of confirming together an application, a substantial period, and a legal obligation to make a certain disposition. What is not permitted is to establish inaction from a mere failure to respond without the verification of these three. One must not hasten to recognize the qualification as an object from the impression of the reply or from the time of waiting alone, nor must one reach a conclusion without checking, without omission, the requirements demanded by the text.
3.10Fine Distinctions Within the Stage
The preceding step was understood to require identifying whether the act qualifies as a refusal of a disposition required by law, while distinguishing it from the unsatisfactory explanation itself. Even if that distinction is accepted, elements requiring confirmation remain within the pathway. Whether the route to the subject matter of appeal litigation (administrative litigation) can be said to be fully open, or whether within it a portion to be judged anew is divided off, is the question now.
Article 2 of the Administrative Litigation Act provides: “2. The term ‘failure to act’ refers to a case in which an administrative agency has a legal obligation to make a certain disposition upon an application by a party within a reasonable period of time, yet fails to do so.” The subject designated by this language is the administrative agency, and the act is the failure to make a certain disposition upon an application by a party. The conditions are framed as cases in which the existence of an application, the lapse of a reasonable period, and a legal obligation to make a certain disposition are all present.
The conditions of this language are connected to the conclusion reached earlier. Accordingly, the mere fact that processing was delayed does not establish a failure to act; the application and the legal obligation must both be confirmed. The reason these two must be examined separately is that, while the former describes the experience of delay, the latter determines whether the delay amounts to non-performance of a legal obligation.
The worry that, the more public authority operates through informal means, the more the formal concept of a disposition empties out relief, is also carried in this counterargument. The applicant is left waiting for an answer, and the inconvenience and lost opportunity equal to the delay remain as they are. While not erasing the weight of delay that the counterargument points out, this Section does not permit treating a non-response that falls short of the statutory definition of failure to act as a failure to act.
What must be confirmed in this scene are the application, the reply, changes in legal status, the basis for the obligation to make a disposition, the lapse of time, and the original disposition and the administrative appeal decision. First it is divided off whether the reply qualifies as a disposition that changes legal status, or stops at being an explanation, and accordingly it is determined whether an administrative act falling under dispositions and the like is identified. Where a failure to act consisting in a legal obligation to make a certain disposition upon an application is identified, the pathway opens; where the reply is merely simple guidance by the agency, lacking dispositional character, or where there is no legal obligation to make a disposition and hence no statutory failure to act, the pathway is blocked. Where the legal effect of the document or the basis for the obligation to make a disposition cannot be confirmed, the matter remains undetermined. What cannot be judged from the scene alone is undetermined.
What this Section permits is a distinction drawn after jointly confirming the application, the reasonable period, and the legal obligation to make a certain disposition; what it does not permit is elevating a non-response to a failure to act without such confirmation. An obligation does not arise merely because the delay is regrettable, nor is dispositional character established merely because the guidance appears untrustworthy.
3.11Synthesis of Effectiveness, Blockage, and Undetermination
Following the question whether delayed processing is at once an unlawful failure to act, what remains is by what standard to distinguish the opening, the blocking, and the undetermined status of the pathway. The preceding analysis concluded that one must identify whether the act qualifies as a refusal of a disposition required by law, while distinguishing it from the unsatisfactory explanation itself. Now the case that passes that identification, the case that does not, and the case in which judgmental material is still lacking must each be placed in its respective position. The scene in which Applicant A regards Agency B's reply as a disposition while Agency B asserts that it is mere simple guidance becomes the testing ground for that distinction.
The provision in question is Article 2(1)2 of the Administrative Litigation Act. That language defines: “2. The term ‘failure to act’ refers to a case in which an administrative agency has a legal obligation to make a certain disposition upon an application by a party within a reasonable period of time, yet fails to do so.” (Article 2 of the Administrative Litigation Act.) The subject designated by this language is the administrative agency, the foundational act is the party's application, the temporal requirement is that it is within a reasonable period, and the conduct requirement is the non-performance of a legal obligation to make a certain disposition. Here, ‘a reasonable period’ does not denote a value that fixes the lapse of a period as such, but refers to the nature of the time to which the obligation to make a disposition upon an application is bound.
The core linking this language with the conclusion of this Section is the simultaneous confirmation of four elements. An application exists, a reasonable period has elapsed, a legal obligation to make a certain disposition exists, and a state in which that obligation has not been performed must be jointly identified; only then does one reach the statutory definition of failure to act. If these conditions are peeled away one by one, each leaves behind a different phenomenon. With the application alone, it is not yet determined what obligation there was to perform; with the mere lapse of a period, no basis for an obligation comes to light. Therefore, the task of dividing ‘a case in which a failure to act with an application and a legal obligation to make a disposition has been identified’ from ‘a case in which there is no legal obligation to make a disposition’ is not a recitation of requirements but a separation of the matters to be confirmed.
The strongest counterargument is the criticism that the formal concept of a disposition empties out relief. The more public authority operates through informal means, the argument runs, the more the agency can evade a substantive answer by way of a written reply and exploit the uncertainty of the reasonable period to tolerate delay. The loss remaining to Applicant A is the inconvenience of waiting with no means of response, and, as a result, an impairment of value in that the remedying of rights itself is delayed. Even so, a mere non-response cannot be established as a failure to act without confirming the application and the legal obligation. The circumstance that the reasonable period is uncertain does not exempt the task of finding a basis for the obligation, and the gap the counterargument points out is addressed not by omitting the textual requirements but by demanding a record of confirming those requirements.
The facts confirmed in the synthetic scene are only the confrontation that Applicant A regards Agency B's reply as a disposition while Agency B asserts that it is mere simple guidance. As to what the legal effect of the reply document is, and what the basis for the legal obligation to make a disposition upon the application is, this scene gives no answer. Accordingly, on the present records, both whether the reply possesses dispositional character and whether there is a statutory failure to act remain undetermined. The conditions to be contrasted are clear. If the reply is confirmed to be a registration disposition that actually establishes legal status, the determination of whether it qualifies as an object of litigation must be revised. Since that confirmation is not yet available, however, matters the scene cannot itself determine are left in the place of the undetermined.
The conclusion this Section permits is limited. If an administrative act falling under dispositions and the like is identified, or a failure to act with an application and a legal obligation to make a disposition jointly confirmed is identified, the pathway to the subject matter of appeal litigation (administrative litigation) opens. Conversely, if it is merely simple guidance by the agency and lacks dispositional character, or if there is no legal obligation to make a disposition and hence no statutory failure to act is reached, that pathway is blocked. If the legal effect of the document or the basis for the obligation to make a disposition remains unconfirmed, it is classified as undetermined, and a lack of material is not converted at once into a bar to relief.
3.12Conclusion Carried Over to the Next Section
Beyond identifying an act qualifying as a refusal of a disposition required by law and distinguishing it from an unsatisfactory explanation, the question now remaining concerns how delayed processing is to be handled. Keeping the distinction confirmed above intact, the analysis examines separately what state can be called a failure to act without confirmation of the application and the obligation, and the nature of the pathway that such a determination leaves open.
The statutory provision corresponding to this question is Article 2(1)2 of the Administrative Litigation Act. The subject designated by this definition is the administrative agency, the starting point is a party's application, and the act concerned is a certain disposition. And the state in which the administrative agency bears a legal obligation to make that disposition yet fails to perform it within a reasonable period is what is here called a failure to act. This paragraph deals only with the scope of that language.
Reading the language of the provision together with the foregoing determination makes it clear that the elements requiring confirmation are set out together before a delay itself is established as a failure to act. That is, one must confirm jointly whether there was an application, whether a reasonable period elapsed, and whether there was a legal obligation to make a certain disposition; only then does one reach the statutory definition of failure to act. The reason these three must be examined separately is that each requires a different fact. The application accounts for the start of the procedure, the period for the degree of elapsed time, and the legal obligation for what the administrative agency was required to do. The last item cannot be filled by the time spent waiting alone; therefore, establishing a failure to act while any one of the three remains unconfirmed exceeds the scope set by this definition.
This counterargument voices concern over the uncertainty Applicant A undergoes while waiting and the delay in the remedying of rights, pointing out that formal requirements can become a pathway through which substantive disadvantage is left unattended. Yet the preceding answer is maintained within this scope. Even where judging the reasonable period is difficult, a mere non-response cannot be established as a failure to act without confirming the application and the legal obligation. Without erasing the disadvantage of delay that the counterargument points out, this conclusion is maintained at a point that does not deprive one of the confirmation that must remain before establishment.
In this scene, the facts belonging to this question are only the dispute over the legal character of the reply, and the remaining record is undetermined. As the record for determination one lists the application, the reply, changes in legal status, the basis for the obligation to make a disposition, the lapse of time, and the original disposition and the administrative appeal decision. Whether the reply is a disposition or guidance, and what the basis for the legal obligation to make a disposition is, are not established by this scene alone. In the absence of that confirmation, whether the statutory definition of failure to act is satisfied and the opening of that pathway remain undetermined.
Accordingly, what this Section permits is the narrow conclusion that a failure to act is not established merely by the circumstance that delay was endured, and that only after jointly confirming the application, a reasonable period, and a legal obligation to make a certain disposition does one arrive at that statutory definition. What is not permitted is the direction that calls a non-response immediately a failure to act without confirmation, or that asserts the pathway to the subject matter of appeal litigation (administrative litigation) is already open. This pathway opens where an administrative act falling under dispositions and the like, or a failure to act with an application and a legal obligation to make a disposition, is identified, and it is blocked where the reply is merely simple guidance by the agency and lacks dispositional character, or where there is no legal obligation to make a disposition and hence no statutory failure to act. The question remaining within this boundary is passed on to the next: Can a registration connected with a private right also become a disposition?