Monograph Series · Third series › Part VI Judicial remedies against public power › III-40 · First edition
Suspension of Execution in Administrative Cases: The Situation to Be Preserved Before Judgment
To what extent can loss be halted when even a win on the merits would come too late to prevent it?
Volume contents
Abstract
This volume asks to what extent loss that even a win on the merits would come too late to prevent can be halted. Filing suit does not automatically stop the disposition from proceeding. Irreparable loss, urgency, and public welfare must be concretely linked to the scope of the stay. The path to relief opens where irreparable loss and urgency are established by prima facie proof and the necessary scope of the stay and the public welfare limitation are satisfied, and closes where urgent irreparable loss is not recognized or where a stay is likely to have a serious effect on public welfare. The six sections address, in turn, the disposition that keeps moving after suit is filed, irreparable loss and urgency, what should be stopped, public welfare as a barring condition, prima facie proof and the effect of a challenge, and the end of the preserved state. The strongest counterargument is as follows. Restricting a stay on grounds of the public interest leaves a party's irreparable loss unaddressed. The comprehensive selection of emergency measures and review for deviation from or abuse of discretion are not addressed in this volume.
Synthetic case
The whole volume follows this invented case. It is not a real matter, and its facts are not legal findings.
Applicant A has filed an action for revocation but is concerned that, as enforcement of the disposition proceeds, it will become difficult to restore the prior state before the judgment on the merits.
6 sections and their questions
- 01The Disposition That Keeps Moving After Suit Is Filed
Does filing an action for revocation stay enforcement of the disposition?
22 min - 02Irreparable Loss and Urgency
Does the existence of a disadvantage immediately call for a stay of enforcement?
18 min - 03What Should Be Stopped
Must the effect of the disposition itself always be stayed?
21 min - 04Public Welfare as a Barring Condition
Is a stay always granted whenever an individual faces urgent loss?
18 min - 05Prima Facie Proof and the Effect of a Challenge
What is stopped by applying for a stay or filing an appeal?
21 min - 06The End of the Preserved State
Once a stay decision becomes final, is it maintained until the end?
19 min