Summary
For an action for revocation, the principle that an administrative appeal may be bypassed must be examined together with the prior-appeal provisions of special acts.
1.1The Standard by Which the Path Opens
If one misapprehends the path that must be traversed first, one either takes a needless detour or is stopped at the entrance. After distinguishing the interest in confirmation in an action for confirmation of nullity, etc. from the standing in an action for confirmation of illegality of an omission, which presupposes the applicant, this section addresses the link between adjudication and lawsuit, the step that precedes it. Applicant A first filed a request for adjudication, and administrative agency B contends that the lawsuit was brought late. What A and B dispute in this scene is precisely the entrance to this relief—that is, whether administrative adjudication must first be pursued before a lawsuit may be brought, and the criteria by which that passage is opened. If one misjudges whether the path must be traversed first, the person filing the action will take a needless detour or be turned away at the very entrance. One must therefore ascertain precisely the conditions of the path that must be traversed first.
The basis for answering this question is Article 18(1) of the Administrative Litigation Act. Its wording reads as follows: “(1) An action for revocation may be instituted without undergoing such adjudication even in cases where a request for administrative adjudication may be filed against the disposition concerned pursuant to the provisions of Acts and substatutes: Provided, That this shall not apply where another Act provides that no action for revocation may be instituted without the adjudication on the request for adjudication against the disposition concerned. <Amended July 27, 1994>” (Article 18 of the Administrative Litigation Act). In this wording, the party who institutes an action for revocation is the person seeking to file the action, the act is the filing of an action against the disposition, and the cases in which an action may be filed without undergoing adjudication are those in which Acts and substatutes contain provisions permitting a request for adjudication. However, where another Act provides that no action for revocation may be instituted without the adjudication, the wording imposes the condition that the adjudication be obtained first.
The foregoing wording states that requiring adjudication to be undergone first as a rule for an action for revocation is not the principle. The main clause provides that even where a request for adjudication may be filed, one may file an action without undergoing it, while the proviso provides that what requires such exhaustion is a separate provision of another Act. The reason for separating these two stages is clear. One is whether a request for adjudication may be filed—that is, the existence of an adjudication that may be undergone optionally—and the other is whether an action may be filed only after adjudication must be undergone—that is, the existence of mandatory exhaustion requiring an adjudication first. Mandatory exhaustion refers to cases in which an adjudication must first be obtained pursuant to a special Act. Even with the same administrative adjudication, the entrance to litigation divides according to the distinction between these two cases.
Nevertheless, there is the counterargument that resorting immediately to a lawsuit diminishes the settlement function of specialized adjudication. The concern is that if a request for adjudication is required to be undergone, the administrative agency can look once more at its own disposition and resolve the dispute through settlement, whereas if an action is filed immediately, that opportunity is diminished. This counterargument also flags the inconvenience that complicated exhaustion exceptions and time periods shift the burden onto the person contesting the agency's error. Yet notwithstanding such losses and inconveniences, one cannot write that administrative adjudication is indispensable for every administrative litigation. The fact that Article 18(1) states that an action may be instituted without undergoing adjudication while making only the exhaustion provisions of other Acts an exception means that exhaustion is not the default but an exceptional requirement.
In this scene, there are designated places for recording the exhaustion provision of a special Act, the request for adjudication, service of the adjudication, awareness of the disposition, and the explanation of urgency and grounds for exception. The fact that A filed a request for adjudication is confirmed, but whether the applicable Act contains an exhaustion provision requiring an adjudication to be obtained first, and when service of the adjudication or awareness of the disposition—the facts from which the respective time periods for adjudication and for litigation begin to run—occurred, are not confirmed in the scene. Nor can it be determined from this scene alone whether the requested performance, parties, and conditions are specified in the statement of the claim, and whether the right underlying the chosen action can be defended. Even if only the ground for exemption from awaiting the adjudication is confirmed, one must not broaden this into the conclusion that filing for adjudication itself is unnecessary. Where the Act to which exhaustion applies or the service that starts the running of time cannot be confirmed, judgment is reserved.
Accordingly, the entrance to this relief is opened only in cases where the rules on mandatory exhaustion and the exceptions are applied and the respective time periods for adjudication and litigation are observed in accordance with the corresponding facts of commencement. Where that condition is met, one passes through. Conversely, where mandatory exhaustion was not undergone and there is no ground for exemption, or where the period for filing an action has expired and no corresponding exception applies, one is blocked. However, one does not definitively conclude that relief is impossible merely because the Act requiring exhaustion and the service that starts the running of time could not be confirmed.
1.2The Conditions That Block Relief
The preceding step starts from distinguishing the interest in confirmation in an action for confirmation of nullity, etc. from the standing in an action for confirmation of illegality of an omission, which presupposes the applicant, but does not repeat that reasoning. In this scene, Applicant A first filed a request for adjudication, and administrative agency B contends that the lawsuit was brought late. Must administrative adjudication be pursued before a lawsuit may be brought, and even knowing of the existence of that obligation, what are the conditions under which the route to relief is closed? If the claimant misjudges the road ahead, a procedural burden that could have been avoided will remain, or he will be turned away altogether at the entrance to litigation.
The wording that sets the gateway to an action for revocation is examined first. Article 18(1) of the Administrative Litigation Act provides that “(1) An action for revocation may be instituted without undergoing such adjudication even in cases where a request for administrative adjudication may be filed against the disposition concerned pursuant to the provisions of Acts and substatutes. <Amended July 27, 1994>” (Article 18 of the Administrative Litigation Act). Here the party is the person who seeks to institute a lawsuit contesting the disposition concerned, and the act is the institution of an action for revocation against that disposition. The conditions set by the wording are twofold. First, unless there is a provision falling under the proviso, the action may be instituted without undergoing adjudication. Second, where another Act requires prior exhaustion through adjudication, that requirement must be observed.
This two-pronged wording meshes directly with the conclusion of this section. Cases in which a request for administrative adjudication may simply be filed are distinguished from cases in which an adjudication must first be obtained by reason of another Act. In the former case, adjudication is optional, and the door to litigation is not closed merely because that path was not taken. Mandatory exhaustion is what denotes the latter. Mandatory exhaustion refers to cases in which an adjudication must first be obtained pursuant to a special Act. In such a case, where no adjudication was obtained and there is no ground for exemption, or where the period for filing an action has expired and no corresponding exception applies, at least one of the statutory requirements is unmet, and the route to relief is closed. Whether the route is open or closed is judged by whether the requirements are met, and is not converted into the actual result of payment, delivery, or recovery.
The point targeted by the counterargument that immediate litigation diminishes the settlement function of specialized adjudication is fairly specific. The expertise of the Administrative Adjudication Committee and the room for settlement that revisits discretion exercised within the agency are lost as disputes are driven into litigation. From the standpoint of the person seeking to institute a lawsuit, the complicated exhaustion exceptions and time-period provisions may also look like devices that shift the burden onto him. The conclusion is maintained without erasing that disadvantage. This counterargument is answered here, but the principle is not overturned. One cannot write that administrative adjudication is indispensable for every administrative litigation. Accordingly, even though the settlement function of adjudication is emphasized, one must not manufacture that exhaustion obligation even for cases lacking an exhaustion provision in a special Act.
The fact confirmed in this scene is that Applicant A filed a request for adjudication first and that administrative agency B contends that the lawsuit was brought late. This fact is placed alongside the foregoing conditions for comparison. What is needed is whether there was an exhaustion provision in a special Act, whether A actually filed the request for adjudication and when the adjudication was served, when the disposition became known, and whether the exception based on urgency can be substantiated. Because the scene alone cannot confirm the Act to which exhaustion applies and the fact of commencement by service, these items remain undetermined. One condition laid down earlier, however, is clear: a ground for exemption merely dispenses with the need to await the adjudication; it does not abolish mandatory exhaustion itself.
Thus the boundary between the conclusion that is permitted and the conclusion that is not is set. What is permitted is a narrow distinction: even where a request for adjudication may be filed, a lawsuit may be instituted first, and the exhaustion requirement must be observed only where another Act requires prior exhaustion through adjudication. If that exhaustion requirement or the requirement as to the period for filing an action is not met, the route to relief is closed. By contrast, the conclusion that administrative adjudication is indispensable for every administrative litigation is incompatible with this wording, and it is impermissible to broaden, on the mere confirmation of an exhaustion exception, into the proposition that filing for adjudication itself is unnecessary. What cannot be adjudicated for want of material remains undetermined, but this narrow conclusion already established must not be erased.
1.3The Boundary That Remains When There Is No Data
A must properly weigh the conditions under which the path must first be walked, lest he take a needless detour or be stopped at the entrance. The interest in confirmation in an action for confirmation of nullity, etc. and the standing in an action for confirmation of illegality of an omission, which presupposes the applicant, are distinct. For B's argument to hold, it must be clear what must first be undergone, and what the standard is that fixes that order.
The basis for answering this question is Article 18(1) of the Administrative Litigation Act. Here the former refers to cases in which a request for adjudication may be filed, and the latter to cases in which an adjudication must first be obtained.
Accordingly, the principle that one may decline to undergo adjudication must be read together with cases in which another Act requires an adjudication. The reason the two must be read separately is that falling under the former permits a lawsuit immediately, whereas falling under the latter makes the adjudication a prerequisite. If this distinction is skipped, even cases in which the Act applying exhaustion and the service that starts the running of time cannot be confirmed will at once be made the subject of a definitive determination.
This standard, however, comes at a cost. Immediate litigation diminishes the settlement function of specialized adjudication, and complicated exhaustion exceptions and time periods may shift the burden onto the person contesting the agency's error. This loss does not disappear, for the moment one categorically generalizes the requirement as indispensable, cases that call for no separate exhaustion provision are blocked as well.
The judgment records entering the synthetic scene are the exhaustion provision of a special Act, the request for adjudication, service of the adjudication, awareness of the disposition, and the explanation of urgency and grounds for exception. From the mere fact that A filed a request for adjudication first, it is not yet determined whether the Act in question was one requiring exhaustion or one under which he could sue immediately in accordance with the principle. The period for filing an action, which B contends has lapsed, likewise can be calculated only once the fact of commencement—service of the adjudication or awareness of the disposition—is confirmed. This stretch, in which the Act applying exhaustion or the service that starts the running of time cannot be confirmed, remains undetermined rather than impossible.
Cases in which the Act applying exhaustion and the service that starts the running of time are unconfirmed are left undetermined, in the sense that the material for judgment has not been specified, and are excluded from the scope of definitive determination. This state of being undetermined must not, however, be confused with impossibility. A lack of material does not itself mean that relief is impossible, and that the legal route is open is a different question from whether actual recovery has been achieved.
1.4The Records Needed for Determination
What must now be asked in this scene is not the procedure the two have passed through, but by what the point at which they stood in that procedure can be confirmed. Since the earlier step distinguished the interest in confirmation in an action for confirmation of nullity, etc. from the standing in an action for confirmation of illegality of an omission, which presupposes the applicant, this section deals not with the judgment on standing but with the records for determining the stage. This determination does not speak to whether the door to litigation is open or closed; it limits the kinds of material to be used in the judgment.
The statutory provision corresponding to this question is Article 18 of the Administrative Litigation Act. Article 18(1) reads, in the original: “(1) An action for revocation may be instituted without undergoing such adjudication even in cases where a request for administrative adjudication may be filed against the disposition concerned pursuant to the provisions of Acts and substatutes: Provided, That this shall not apply where another Act provides that no action for revocation may be instituted without the adjudication on the request for adjudication against the disposition concerned.” The party designated by this wording is the person seeking to institute an action for revocation, the act is the institution of that action, and the condition to which the proviso attaches is the case where another Act contains a provision requiring an adjudication to be obtained first. What the required exhaustion here consists of—that is, the case in which an adjudication must first be obtained pursuant to a special Act—depends on the provisions of that other Act.
The wording of the provision and the foregoing conclusion connect as follows. What the proviso to paragraph (1) requires is not the fact of having undergone the adjudication itself, but material by which the fact that another Act provides for exhaustion through an adjudication can be confirmed. Thus the records used to determine the stage are fixed as the exhaustion provision of a special Act, the request for adjudication, service of the adjudication, awareness of the disposition, and the explanation of urgency and grounds for exception. What these materials respectively indicate is the Act requiring exhaustion, the time at which the adjudication was requested, the time at which the adjudication was served, the time at which the disposition became known, and the substantiation of the urgent circumstances and the grounds for exception. The conclusion that the stage is determined solely on the fixed records means that facts linking these materials are not separately presumed. Only by distinguishing the requirements set by the statutory provision from facts that can be confirmed by the records can one avoid filling an absent record with after-the-fact conjecture.
The counterargument that immediate litigation diminishes the settlement function of specialized adjudication voices concern over the expertise and the opportunity for settlement that are lost when a party skips an adjudication it would otherwise properly undergo. This observation does not disappear. Even so, one cannot write that administrative adjudication is indispensable for every administrative litigation. The foregoing wording separates actions that may be instituted without undergoing adjudication from actions caught by the proviso, and it is the records that determine by what the divided boundary is confirmed. If, because the inconvenience feared by the counterargument is great, an additional exhaustion requirement not found in the statutory provision were created, material outside the range of records fixed by the present question would be drawn into the determination of the stage. Therefore the scope of the answer is preserved.
The facts confirmed in the synthetic scene are only that Applicant A filed a request for adjudication first and that administrative agency B contends that the lawsuit is late. Comparing these facts with the records fixed above, the material concerning the request for adjudication appears in the scene, while the material concerning the exhaustion provision of a special Act, service of the adjudication, awareness of the disposition, and the explanation of urgency and grounds for exception cannot be confirmed from the scene. Accordingly, on this scene alone it cannot be determined which Act required exhaustion, when the adjudication was served, or when the disposition became known. These items remain undetermined. The point of time at which B regarded the lawsuit as late and the ground for reckoning the period cannot be confirmed by the records and therefore cannot be determined in this section.
What this section permits is the conclusion of determining the stage on the fixed records and leaving unconfirmed items unconfirmed. What is not permitted is filling an absent record with conjecture and then immediately asserting categorically that exhaustion was or was not undergone, and generalizing that exhaustion is indispensable for any and every administrative litigation. The state in which the legal route is open is distinct from the actual result of payment, delivery, or recovery, and this section deals with the former.
1.5Circumstances That Change the Decision
The preceding section confirmed that this ruling rests on the special Act exhaustion requirement, the request for adjudication, service of the decision, awareness of the disposition, and urgency and a showing of the exception, and that, without those records, the conclusion remains undetermined. Upon those records, the question to be confirmed now is whether one must first undergo an administrative adjudication before bringing a lawsuit.
The relevant text provides the relationship between administrative adjudication and an action for revocation as follows: "① An action for revocation may be filed without undergoing the administrative adjudication with respect to the disposition in question, even in cases where such administrative adjudication may be initiated pursuant to statutes or regulations. However, this shall not apply where another statute provides that no action for revocation may be filed unless a decision on the administrative adjudication with respect to the disposition in question has been rendered." (Administrative Litigation Act, Article 18) The subject indicated by this text is the person who may become the plaintiff in an action for revocation; the act is the filing of the lawsuit; and the condition is the case in which another statute provides that the lawsuit may not be filed unless the decision has been rendered.
This text places within a single Article the principle that one may forgo adjudication together with an exception to that principle. The main clause of the preceding sentence declares that even where a request for adjudication may be made, a lawsuit may be filed without undergoing it, while the proviso of the following sentence qualifies that declaration by providing that it does not apply where another statute contains a mandatory exhaustion requirement. The reasons for not having to await a decision and the circumstances in which there was no need to file a request for adjudication in the first place are matters calling for separate determinations; thus, even if the former is confirmed, the latter cannot be viewed in the same way, and the two must be examined separately.
The strongest counterargument targets the loss of coordination. That administrative agency B contests that the lawsuit was late is one manifestation of this burden. Even so, the author's conclusion stands.
What is confirmed in the synthetic scene is only the fact that Applicant A first requested an adjudication and the fact that administrative agency B contests that the lawsuit was late. Whether or not the records set out in the preceding section — the special Act exhaustion requirement, the request for adjudication, service of the decision, awareness of the disposition, and urgency and a showing of the exception — exist cannot be determined from this scene alone. Accordingly, in the same manner as in the preceding section, if those records are not confirmed, this conclusion also remains undetermined. Even where a ground for exemption from awaiting a decision is confirmed, this scene does not determine whether that confirmation extends to the point that filing a request for adjudication itself is unnecessary.
What this ruling permits is determining the ruling by examining the question of whether exhaustion is mandatory together with its exceptions; what it does not permit is expanding the confirmation of a ground for exemption into the dispensing of the filing of a request for adjudication. Conversely, writing that an administrative adjudication is mandatory in every administrative litigation also falls outside this ruling. Mandatory exhaustion means cases in which, pursuant to a special Act, the decision must first be undergone, and it applies only to the extent that the provision of that special Act is confirmed.
1.6The Strongest Counterargument and the Answer
Only after distinguishing the interest in confirmation of nullity, etc. from the standing to seek confirmation of the unlawfulness of inaction premised on the existence of an applicant can one raise the question of the relationship between administrative adjudication and a lawsuit. The first question between A and B is whether one must first undergo an administrative adjudication before bringing a lawsuit. The concern that going straight to litigation may diminish the coordinating function of expert adjudication attaches to this question. The strongest counterargument points to such losses and demands that the entrance to litigation be narrowed.
The text that answers this question is found in Article 18, paragraph (1) of the Administrative Litigation Act. It provides: "① An action for revocation may be filed without undergoing the administrative adjudication with respect to the disposition in question, even in cases where such administrative adjudication may be initiated pursuant to statutes or regulations. However, this shall not apply where another statute provides that no action for revocation may be filed unless a decision on the administrative adjudication with respect to the disposition in question has been rendered." Here the subject is the person contesting the disposition, and the act is filing an action for revocation directly without first requesting an adjudication. The condition is that an adjudication may be initiated with respect to that disposition; however, if another statute requires that the decision first be undergone, the matter falls within that exception. (Administrative Litigation Act, Article 18)
This text places within a single Article the principle that an action for revocation may be filed without undergoing adjudication and the exhaustion requirement of a special Act, and these must be examined together. The route to direct litigation left open by the preceding sentence may be barred before the proviso of the following sentence; if these two are read apart, the basis for the distinction is lost. Because this provision is limited to cases where another statute requires that the decision first be undergone, the mere fact that an adjudication may be initiated does not create an exhaustion requirement. Accordingly, one cannot write that an administrative adjudication is mandatory in every administrative litigation. Distinguishing the route that may forgo adjudication from the route that a special Act has closed off is the starting point of this determination.
The counterargument that going straight to litigation diminishes the coordinating function of expert adjudication targets a practical loss. The opportunity to attempt coordination at the adjudication stage between the administrative agency and the parties is reduced, and the complex exhaustion exceptions and their periods shift a burden onto persons contesting the agency's errors. This counterargument must be left in place without dispelling the discomfort that the more one proceeds directly to litigation, the narrower the room for settlement. Even so, the conclusion does not shake, given that the statutory text separates the route that may forgo adjudication from the route that a special Act has closed off. The decrease in the coordinating function pointed out by the counterargument is not a ground for demanding exhaustion broadly.
What can be confirmed in the synthetic scene is only the fact that Applicant A first requested an adjudication and the fact that administrative agency B contests that the lawsuit was late. Placing these facts within the conditions above, the records required are the special Act exhaustion requirement, the request for adjudication, service of the decision, awareness of the disposition, and urgency and a showing of the exception. However, which statute imposes exhaustion with respect to this disposition, and when service of the decision or awareness of the disposition occurred, are not determined in this scene. If the law imposing exhaustion or the service that starts the running of the period cannot be confirmed, that part remains undetermined.
The conclusion that is permitted is narrow. Even where an adjudication may be initiated, an action for revocation may be filed first, and that route is closed only where another statute requires that the decision first be undergone. Beyond this scope, this text does not support either fixing that an administrative adjudication is mandatory in every administrative litigation or asserting that the period of the exhaustion exception is always favorable. A proper connection between administrative adjudication and an action for revocation is established where mandatory exhaustion and its exceptions are applied and the respective periods for adjudication and litigation are observed in accordance with the corresponding facts from which they run.
1.7The Link to the Application and the Dispositive Part
The question now presented is whether one must first undergo an administrative adjudication before bringing a lawsuit. The preceding section reached the conclusion that one cannot write that an administrative adjudication is mandatory in every administrative litigation. The standard for whether one may enter litigation in certain cases without undergoing adjudication must be set out separately. The dispute between the two turns, not on whether the adjudication was undergone, but on whether there was a duty to undergo that procedure first.
The statutory text on this question is as follows: "① An action for revocation may be filed without undergoing the administrative adjudication with respect to the disposition in question, even in cases where such administrative adjudication may be initiated pursuant to statutes or regulations. However, this shall not apply where another statute provides that no action for revocation may be filed unless a decision on the administrative adjudication with respect to the disposition in question has been rendered." (Administrative Litigation Act, Article 18). The first part of this text provides that even where an adjudication may be requested, that stage may be skipped. The latter part, following "however," qualifies this by providing that where another statute requires that the decision first be undergone, that requirement must be observed. In other words, the option of undergoing adjudication and the obligation always to undergo adjudication are not the same thing.
The reason these two stages of determination must be distinguished is that the conclusion of this section stands precisely upon that distinction. At the first stage, one examines whether a route is open for initiating an administrative adjudication with respect to the disposition in question. Even in such a case, the principle of the text is that an action for revocation may be filed as it stands. Only at the second stage does one confirm whether another statute provides that no lawsuit may be filed unless the decision has been rendered. Only when this condition is confirmed does the stage of first undergoing adjudication become the entrance to the lawsuit. As long as which is the case remains undetermined, no determination that the lawsuit was late can be made.
The counterargument that going straight to litigation diminishes the coordinating function of expert adjudication is one that worries about the benefit of coordination possessed by administrative adjudication, rather than about the loss of detours or of being barred at the entrance. If experts first render a decision and sort out the dispute, fewer matters proceed to litigation, and room remains for both sides to work matters out together. This disadvantage must be acknowledged. The text provides that even where an adjudication may be initiated, it may be filed without undergoing that stage, and only where another statute requires that the decision first be undergone does one follow that requirement. Widening the benefit of coordination does not create a mandatory exhaustion requirement that is absent from the text.
There are only two facts belonging to this question in this scene. Applicant A first requested an adjudication, and administrative agency B is contesting that the lawsuit is late. Judged by the conditions above, whether it is late is determined by whether one had to first undergo adjudication. If there is a provision requiring, with respect to this disposition, that no action for revocation may be filed unless a decision on the administrative adjudication has been rendered, the adjudication requested by A may lead to the conclusion that the requirement was observed. If no such provision is confirmed, the matter lies closer to the view that A could have filed the lawsuit without undergoing adjudication. However, in this scene neither the law imposing exhaustion nor the service from which the period runs is determined. Because there is no material as to which statute governs this disposition or from when the litigation period began to run, the determination that it was late cannot be fixed at this point.
The conclusion that can be reached in this section is narrow. The principle stands that an action for revocation may be filed without undergoing adjudication, and mandatory exhaustion arises only where another statute requires that the decision first be undergone. Confirming this principle does not carry through to the conclusion that adjudication is unnecessary in every administrative litigation. Nor can it be broadened, on the ground that a reason for not having to await a decision has been confirmed, into making the filing of a request for adjudication itself unnecessary. Whether there was a need to undergo adjudication, and whether the period of that stage was observed, remain as separate matters.
1.8The Scope This Section Undertakes
At issue in this scene is what must first be undergone before the route to a lawsuit opens. Here, the question whether one must first undergo an administrative adjudication before bringing a lawsuit is determined, together with the limits that attach to it.
The relevant source text for this question is Article 18, paragraph (1) of the Administrative Litigation Act. It reads: "① An action for revocation may be filed without undergoing the administrative adjudication with respect to the disposition in question, even in cases where such administrative adjudication may be initiated pursuant to statutes or regulations. However, this shall not apply where another statute provides that no action for revocation may be filed unless a decision on the administrative adjudication with respect to the disposition in question has been rendered." Here the availability of initiating an administrative adjudication and the filing of a lawsuit are distinguished, and the given exception is placed in the provisions of another statute.
This text connects with the determination that one must examine together the principle that an action for revocation may be filed without undergoing adjudication and the exhaustion requirement of a special Act. The preceding paragraph states that even 'the case in which an adjudication may be requested' does not become a prerequisite to a lawsuit, while the following proviso qualifies this by providing that where another statute requires the decision to precede, that requirement applies. Here mandatory exhaustion means cases in which, pursuant to a special Act, the decision must first be undergone. If the two cases are mixed, 'may request an adjudication' and 'must first undergo adjudication' cannot be distinguished.
There is a reason for narrowing this distinction. The counterargument that going straight to litigation diminishes the coordinating function of expert adjudication aims at this point. A person dealing with the administrative agency's errors may feel that the complex exhaustion exceptions and periods remain a burden. That is because the exception is expressly set out in the text, and mandatory exhaustion is a limited case that arises where a separate statutory provision exists.
In the synthetic scene, A filed a lawsuit after requesting an adjudication, and B is contesting that the lawsuit is late. The items to be left in the records are the special Act exhaustion requirement, the request for adjudication, service of the decision, awareness of the disposition, and urgency and a showing of the exception. Whether the application falls under a ground for exemption from having to await the decision must be examined by looking at the reasons contained in the records. If the statute requiring exhaustion or the service that serves as the commencement cannot be confirmed, the matter is left unfixed.
Accordingly, the determination that is permitted goes no further than examining the principle and the exception together as to whether one must first undergo an administrative adjudication before bringing a lawsuit. This principle cannot be read broadly so as to extend to every lawsuit in which one must first undergo an administrative adjudication, nor should one rush to a determination without separately examining the requirements and periods of mandatory exhaustion.
1.9Application of the Text of the Provisions and the Holdings of Precedents
That is, it distinguishes the interest in confirmation of invalidity, etc. from the standing for confirmation of unlawfulness of omission, which presupposes an applicant. Turning now to the given scene, applicant A first requested an adjudication, and administrative agency B contends that the lawsuit was filed late. The question posed before this dispute is whether one must first undergo administrative adjudication before one may bring a lawsuit. This question asks whether there exists a procedure to be undergone before the lawsuit, and is examined separately from the earlier stage that asks about the subject of the lawsuit or the standing of the plaintiff.
The source text in question provides for the filing of an action for revocation. It states: "(1) An action for revocation may be filed without undergoing administrative adjudication with respect to the relevant disposition, even in cases where administrative adjudication may be requested with respect to the relevant disposition pursuant to the provisions of statutes and regulations. However, this shall not apply where another Act provides that an action for revocation may not be filed without first obtaining a decision on the administrative adjudication concerning the relevant disposition." (Administrative Litigation Act, Article 18) This language presupposes a case in which administrative adjudication may be requested, while not requiring exhaustion as a general rule, and makes an exception for the case where another Act contains a provision requiring prior adjudication.
In applying this source text, one divides it into two parts. First, the main clause sets forth the principle that, even where a request for adjudication is possible, an action for revocation may be filed without undergoing that procedure. Next, the proviso designates, as an exception to that principle, the case where another Act provides that the action may not be filed without first obtaining an adjudication. Only by making this distinction can one determine whether prior exhaustion is required. Read it in accordance with what is thus defined, without extending it to other paragraphs of the Article or to the reasons of a judgment.
Before this stands the counterargument that filing suit directly would diminish the adjustment function of adjudication by experts. The counterargument points out that the complex exceptions to exhaustion and the periods shift burdens onto those who contest the administrative agency's error. This point cannot be passed over lightly. However, unless a provision of another Act designated by the proviso exists, one cannot write that administrative adjudication is indispensable in all administrative litigation. So long as the distinction between the principle and the exception of the language as defined above is maintained, the diminution of the adjustment function cannot make exhaustion the general rule.
The facts confirmed in this scene are that applicant A first requested an adjudication, and that administrative agency B contends that the lawsuit was filed late. Comparing these two facts with the conditions of the language as defined above, whether prior exhaustion is required varies according to whether another Act contains a provision requiring prior adjudication on the relevant disposition. Yet the scene does not settle such commencement facts as the existence of an Act requiring exhaustion, or the date of the request for adjudication and the date of service of the adjudication. Accordingly, what can be determined in this section is only the scope of application of the language; whether the exhaustion requirement has been satisfied and whether the filing of the action is lawful will be judged when further materials are available.
The conclusion permitted by this section is that only the language of the relevant source text is used as the basis for adjudging the lawful connection between administrative adjudication and an action for revocation, and only the language within the scope of the relevant source text is applied. The judgment cannot be broadened by other articles or paragraphs or by the reasons of a judgment outside that language. To go beyond this scope and write that administrative adjudication is indispensable in all administrative litigation is a direction this section does not permit.
1.10Fine Distinctions Within the Stage
Unlike the task of distinguishing the interest in confirmation of invalidity, etc. from the standing for confirmation of unlawfulness of omission, which presupposes an applicant, at this stage the question is whether one must first undergo administrative adjudication before one may bring a lawsuit, and, within that lawful connection, what portion remains to be subdivided and adjudged.
To answer whether one must first undergo administrative adjudication before one may bring a lawsuit, one examines the following language: "(1) An action for revocation may be filed without undergoing administrative adjudication with respect to the relevant disposition, even in cases where administrative adjudication may be requested with respect to the relevant disposition pursuant to the provisions of statutes and regulations. However, this shall not apply where another Act provides that an action for revocation may not be filed without first obtaining an adjudication on the relevant disposition." (Administrative Litigation Act, Article 18) This language sets the subject as the person filing an action for revocation, the act as undergoing adjudication and filing the lawsuit, and the condition as the existence or absence of a provision on exhaustion in another Act.
This language and the conclusion of this section are connected. One must examine together the principle that an action for revocation need not undergo adjudication and the provisions on exhaustion in special Acts. Here, exhaustion refers to cases in which one must first obtain an adjudication under a special Act, that is, mandatory exhaustion. Accordingly, the detailed distinctions within the stage are confined to the conditions of the cases where the connection works, where it is blocked, and where it remains undetermined. What is needed is only an adjudgment suited to the given conditions, not the addition of a new gateway.
The counterargument that filing suit directly would diminish the adjustment function of adjudication by experts is aimed at this loss. If one goes to court without first undergoing the administrative agency's judgment, the place where the dispute might be sorted out in advance, or where adjustment between the parties might occur, may be reduced. This counterargument emphasizes the benefits of exhaustion, but it cannot erase the distinction drawn by the language, and the conclusion maintains that distinction.
In the synthetic scene, only the fact that applicant A first requested an adjudication and that administrative agency B contends that the lawsuit was filed late bears on this question. The case where the connection works is one in which the necessity of exhaustion and the exceptions thereto are applied and the respective periods for the adjudication and the lawsuit are observed according to the corresponding accrual facts; the case where it is blocked is one in which mandatory exhaustion was not undergone and there is no ground for exemption, or the limitation period for filing an action has passed and no corresponding exception applies. Since the Act imposing exhaustion and the accrual facts cannot be confirmed from the scene alone, this part remains undetermined.
What this section permits is an adjudgment suited to the given conditions; what it does not permit is the generalization that administrative adjudication is indispensable in all administrative litigation.
1.11Synthesis of Effectiveness, Blockage, and Undetermination
Having distinguished the interest in confirmation of invalidity, etc. from the standing for confirmation of unlawfulness of omission, which presupposes an applicant, one must now see how administrative adjudication and the lawsuit are connected within the same procedure. The issue in this scene is not simply whether adjudication was undergone, but rather the establishment of a criterion that decides whether that connection actually opens the entrance, blocks it, or cannot yet be judged.
The relevant language is found in Article 18 of the Administrative Litigation Act. It provides: "(1) An action for revocation may be filed without undergoing administrative adjudication with respect to the relevant disposition, even in cases where administrative adjudication may be requested with respect to the relevant disposition pursuant to the provisions of statutes and regulations. However, this shall not apply where another Act provides that an action for revocation may not be filed without first obtaining an adjudication on the relevant disposition." The subject of this language is the person who seeks to file an action for revocation; the act is the acceptance of the complaint; and the condition attached by the proviso is the existence of a provision requiring prior adjudication in another Act.
This language becomes the starting point of the distinction in that it places the principle and the exception together within a single Article. The preceding sentence is the ground that separates the possibility of requesting adjudication from the filing of the lawsuit, and the proviso is the exception of a special Act that narrows that ground. Hence the following adjudgment is possible: "the conditions under which the connection is opened are cases in which mandatory exhaustion and the exceptions thereto are applied and the respective periods for the adjudication and the lawsuit are observed according to the corresponding accrual facts / the conditions under which it is blocked are cases in which mandatory exhaustion was not undergone and there is no ground for exemption, or the limitation period for filing an action has passed and no corresponding exception applies / undetermined are cases in which the Act applying exhaustion or the service that starts the running of the period cannot be confirmed." The establishment of exhaustion and the observance of the periods consequent upon it must be examined in two separate steps, because the former is the work of finding the statutory provision in the texts, and the latter is the work of confirming each accrual fact in the records.
The counterargument that filing suit directly would diminish the adjustment function of adjudication by experts is raised in its most persuasive form. This counterargument is concerned not with cost but with the value of the adjustment that adjudication by experts was meant to achieve from the outset. If one goes straight to court without adjudication, the room for adjustment that would have been obtained at the adjudication stage disappears, and that loss ultimately falls on the parties. The reason the foregoing language establishes a general principle allowing the adjudication to be skipped is that a special Act closes that door only where necessary, not that the adjustment function is itself a condition of entry into the lawsuit.
Returning to the synthetic scene, A first requested an adjudication and B contends that the lawsuit was filed late. If mandatory exhaustion is established, it is confirmed that an adjudication was undergone, and the respective periods for the request for adjudication and the filing of the lawsuit are observed according to the corresponding accrual facts, then the connection is opened. Conversely, if exhaustion was not undergone and there is no ground for exemption, or the limitation period for filing an action has passed and no corresponding exception applies, then the connection is blocked. However, if it cannot be confirmed which Act requires exhaustion, or whether the service of the adjudication serves as the accrual fact, the matter remains undetermined.
What this section permits is the work of attaching conditions and dividing the adjudgment into three branches, not the work of requiring exhaustion for every lawsuit, nor of flatly asserting that the connection is open unconditionally even without exhaustion. Even where an exception to mandatory exhaustion exists, observance of the periods outside that exception is not thereby exempted together; nor does a ground of undetermination necessarily lead to unavailability of relief.
1.12Conclusion Carried Over to the Next Section
If one misapprehends the path that must first pass through administrative adjudication, one makes unnecessary detours or is blocked at the entrance. The milestone that this section must set at the waystation must be clear. That is, the question is whether one may bring a lawsuit directly even where mandatory exhaustion applies, in other words, even in cases where one must first obtain an adjudication under a special Act. Before setting up a complicated timetable, one must first examine what this question is choosing.
The language needed to answer this question is found in Article 18 (1) of the Administrative Litigation Act. It states: "(1) An action for revocation may be filed without undergoing administrative adjudication with respect to the relevant disposition, even in cases where administrative adjudication may be requested with respect to the relevant disposition pursuant to the provisions of statutes and regulations. However, this shall not apply where another Act provides that an action for revocation may not be filed without first obtaining an adjudication on the relevant disposition." (Administrative Litigation Act, Article 18) The subject handled here is the person who seeks to file an action contesting the effect of a disposition; the act is the filing of an action for revocation; and the condition is whether the adjudication is first undergone.
This language sets apart the principle that one need not undergo adjudication and the case where another Act provides that the lawsuit may not be filed without first obtaining an adjudication. The reason this distinction is necessary is that the two stages answer different questions. The earlier stage deals with cases where statutes merely enable a request for administrative adjudication, that is, the situation of optional exhaustion. The later stage deals with cases where another Act provides that no lawsuit may be brought without an adjudication, that is, the situation of mandatory exhaustion. This distinction becomes the criterion that settles the question of this section, namely whether one may bring a lawsuit directly.
Once one understands that under this principle the path of filing suit directly is open, a worry arises as to whether the adjustment function of adjudication by experts might diminish. This counterargument points out that, if a person opposing the administrative agency's disposition goes straight to court without awaiting an adjudication, the Administrative Tribunal's possibility of adjusting the dispute and its opportunity for expert judgment may be relatively reduced. The foregoing language, as a general rule, allows filing without undergoing adjudication, and the exception is confined to cases where another Act requires that the adjudication first be undergone.
The facts in the synthetic scene remain within the scope determined earlier. This scene shows only the chronological order of a case in which an adjudication was first requested and a lawsuit followed. Yet this scene alone cannot establish whether a mandatory exhaustion provision actually applies to this case, nor which period, measured from which accrual fact, A's lawsuit exceeded. The kinds of materials to be made part of the records have been fixed as no more than the exhaustion provision of the special Act, the request for adjudication, the service of the adjudication, awareness of the disposition, urgency, and the substantiation of the exception. Accordingly, what can be determined in this section is limited to the distinction between the language and the conditions.
The conclusion this section permits is narrow. It is the conclusion of this section that one must first determine whether, in the filing of an action for revocation, first undergoing an adjudication is the principle or an exception required by another Act. To read beyond this as meaning that administrative adjudication is indispensable in all administrative litigation is a direction this section does not permit. Can one bring a lawsuit directly even where mandatory exhaustion applies?