Summary
This chapter upholds the subsidiarity under which a stay of the effect of the disposition is not permitted where the purpose can be achieved by staying its enforcement or the continuation of procedures.
3.1The Standard by Which the Path Opens
If the relief stops more broadly than the necessary portion, the relief itself creates a new burden. The preceding section tied the statutory requirement of an urgent need to prevent irreparable harm to specific materials. The question here is whether the effect of the disposition must always itself be suspended, that is, what standard opens the channel of this relief. Applicant A has filed an action for revocation, but fears that enforcement of the disposition will proceed and that restoration to the pre-judgment-on-the-merits state will become difficult. Whether this concern alone immediately settles on a suspension of effect as the means is the part to be examined under this question.
The statutory provision applicable to this problem is Article 23(2) of the Administrative Litigation Act. Its text provides that, where an action for revocation has been filed, if there is an urgent need to prevent irreparable harm that may arise from a disposition, etc., its enforcement, or the continuation of the procedure, the court in which the main action is pending may decide to suspend. Here the acts that the court takes as its object are written in three branches: the effect of a disposition, etc., its enforcement, and the continuation of the procedure. Whether upon the application of a party or ex officio (by the court's own authority), the court determines which of these to stop and within what scope, and this suspension is hereinafter referred to as a stay of execution.
Satisfaction of the statutory requirements does not immediately amount to a suspension of effect. The proviso of the same article states categorically that a suspension of the effect of a disposition is not permitted where the purpose can be achieved by suspending the enforcement of a disposition, etc. or the continuation of the procedure. A suspension of enforcement or of the continuation of the procedure is the narrow means that prevents the enforcement of the disposition from proceeding any further, whereas a suspension of effect is the broad means that halts the effect of the disposition as such. The reason these two stages are distinguished is that the latter is a subsidiary choice that appears only where the former cannot achieve the purpose. The subsidiarity of a suspension of effect means the limit of halting the effect only where the purpose cannot be achieved by a narrow suspension.
To this limit there attaches a distinct consequence: that a partial suspension may be insufficient to prevent the harm fully. With enforcement alone stopped, the effect of the disposition continues to operate, leaving room for the difficulty of restoring the state that Applicant A fears to persist, and while the narrow means is insisted upon, the disadvantage before the judgment on the merits may become fixed. If the restriction on the public welfare is added, the place occupied by the individual's harm is narrowed still further. Even so, in a case where a suspension of enforcement alone suffices, a suspension of effect cannot be used as the obvious choice. So long as the narrow suspension achieves the purpose, a suspension of effect is a choice the text does not permit, and the remaining inconvenience is a matter to be dealt with at another stage of the restriction on the public welfare.
The facts confirmed in the synthetic scene are that Applicant A filed an action for revocation, is concerned that enforcement of the disposition will proceed, and worries that restoration to the state before the judgment on the merits will become difficult. This scene contains the filing of the action for revocation and the apprehension of irreparable harm, but it presents no materials on the nature and urgency of the apprehension, on the external effect the suspension would have, or on the public welfare. In this interval, where such materials are absent, the recoverability of the harm and the external effect of the suspension cannot be determined and remain undetermined. Nonetheless, the contrast—if the purpose is achieved by a suspension of enforcement or of the procedure alone, the choice of suspending the effect as such is narrowed—operates here as it stands.
The conclusion permitted by this section divides as follows. Where irreparable harm and urgency are substantiated and the necessary scope of suspension and the restriction on the public welfare are satisfied, the entrance to this relief opens. That the entrance has opened does not mean that a suspension of effect must be decided at once; it means that where the purpose is not achieved by a narrow suspension, the broad choice of a suspension of effect remains. Whether a suspension always follows where there is an urgent individual harm is a question that does not belong to this interval.
3.2The Conditions That Block Relief
In this scene the question that remains is whether the court must always at the same time halt the effect of the disposition itself, and what conditions close off that choice. Substantiation of irreparable harm alone has not yet settled the answer. The limit of how far the court may take as a single object of suspension must be given along with it. Hence a task is needed to distinguish the possible scope of a suspension of effect beyond the requirement of urgency confirmed above.
Article 23(2) of the Administrative Litigation Act provides that the court in which the main action is pending may decide to suspend "where there is an urgent need to prevent irreparable harm that may arise from a disposition, etc., its enforcement, or the continuation of the procedure." Here the subject is the court in which the main action is pending, and the act is a decision to suspend upon the application of a party or ex officio (by the court's own authority). The same article opens its object broadly as "suspension of the whole or part of the effect of a disposition, etc., its enforcement, or the continuation of the procedure." What this text establishes is the possibility of choosing between a suspension of effect and a suspension of enforcement or procedure; it does not mean that the choice is always directed toward a suspension of effect.
The proviso appended after this text draws the line that "a suspension of the effect of a disposition is not permitted where the purpose can be achieved by suspending the enforcement of a disposition, etc. or the continuation of the procedure." The purpose of which this proviso speaks is the prevention of irreparable harm in the preceding sentence. Accordingly, where that purpose can be achieved by a narrow suspension, the court cannot make the choice of halting the effect. This is the subsidiarity of a suspension of effect and, together with the substantiation of urgent irreparable harm confirmed above, it forms two separate axes of judgment. Even if urgency is recognized, if subsidiarity bars the way, the channel to a suspension of effect is closed. This is why the basis of the same article must be read as divided into two judgments.
The strongest counterargument is directed at the point that a partial suspension may be insufficient to prevent the harm fully. The worry is that even if enforcement alone is stopped, while the effect of the disposition remains alive a real disadvantage for Applicant A continues, and restoration to the state before the judgment on the merits is still delayed. The fact that, when the public welfare and the individual's imminent harm are set side by side, neither can be wholly driven out also gives weight to this counterargument. Yet the answer the author has settled upon does not waver here. The residual portion of the harm to which the counterargument points is left as a matter of reviewing whether to narrow or broaden the scope of suspension again; it does not make a suspension of effect take priority beyond the proviso of subsidiarity.
The facts confirmed in this scene go no further than that Applicant A filed an action for revocation, that enforcement of the disposition is under way, and that he fears restoration to the state before the judgment on the merits will become difficult. Yet no material is given as to whether that apprehension is of a kind resolved by stopping enforcement, or of a kind that remains so long as the effect of the disposition continues. Nor are materials fixed for gauging the effect on the public welfare. This state, in which there are no materials for judging the recoverability of the harm or the external effect of the suspension, is undetermined, and it is not immediately fixed as non-justiciable merely because there are no materials. The contrastive sentence—if the purpose is achieved by a suspension of enforcement or of the procedure alone, the choice of suspending the effect as such is narrowed—remains as the standard for judging what shall fill the deficient materials of this scene.
The conclusion permitted in this section is limited to a narrow distinction: if even one of the statutory requirements is not satisfied, the channel of this relief is closed. The cases that correspond are where urgent irreparable harm is not recognized, or where there is a concern that the suspension will have a grave effect on the public welfare, or where the purpose can be achieved by a suspension of enforcement or of the continuation of the procedure yet a suspension of effect is sought. Conversely, it means that a suspension of effect opens only where, by the nature of the harm, the purpose cannot be achieved by a narrow suspension and urgency and the restriction on the public welfare are satisfied together. This judgment can stand only when the disposition, the planned enforcement, the nature of the harm, urgency, the public welfare materials, and the decision to suspend are made into the records.
3.3The Boundary That Remains When There Is No Data
That conclusion was to tie the statutory requirement of an urgent need to prevent irreparable harm to specific materials. When deciding what to stop on the basis of this apprehension, the question whether the effect of the disposition itself must always be stopped comes first. For if the stop is broader than the necessary portion, the relief instead creates a new burden.
Article 23(2) of the Administrative Litigation Act provides: "The court in which the main action is pending may, upon the application of a party or ex officio (by the court's own authority), decide to suspend the whole or part of the effect of a disposition, etc., its enforcement, or the continuation of the procedure (hereinafter referred to as a 'stay of execution')." This text specifies the objects of suspension by dividing them into effect, enforcement, and continuation of the procedure, and opens their scope as whole or part. The subject to decide the suspension is the court in which the main action is pending, and the routes of initiation are the two of a party's application and ex officio (by the court's own authority). What this paragraph establishes is the object and scope for which a decision to suspend is possible; other issues under the provision are not dealt with here.
The proviso that follows that text provides: "Provided, however, that a suspension of the effect of a disposition is not permitted where the purpose can be achieved by suspending the enforcement of a disposition, etc. or the continuation of the procedure." Here the subsidiarity of a suspension of effect means the limit of halting the effect only where the purpose cannot be achieved by a narrow suspension. If the purpose can be achieved by a suspension of enforcement or of the continuation of the procedure, a suspension of effect is not permitted. The reason for dividing these two stages is that the questions of how far to extend the object of suspension and whether a suspension is necessary must be judged separately. Where there are no materials for judging the recoverability of the harm or the external effect of the suspension, matters for which the materials of judgment are not specified are left as undetermined, distinct from impossibility. Undetermined means that the materials have not yet been fixed; impossibility means that even with further materials no judgment can be made.
The strongest counterargument takes aim at the point that a partial suspension may be insufficient to prevent the harm fully. If suspension is restricted on grounds of the public interest, it says, the party's irreparable harm is left unattended. If the difficulty of restoring the state that Applicant A fears remains as it is, the criticism is that a narrow suspension alone cannot safeguard the interests existing before the judgment on the merits. The adverse aspect of the harm being left unattended must not be erased. Yet in a case where a suspension of enforcement alone suffices, a suspension of effect cannot be used as the obvious choice. What the proviso requires is the subsidiarity of a suspension of effect, and if the purpose can be achieved by a narrow suspension, the choice of halting the effect is moved to the rear.
The facts belonging to this question in this scene are that Applicant A filed an action for revocation and fears that, if enforcement of the disposition proceeds, restoration to the state before the judgment on the merits will become difficult. That the object of the apprehension is the restoration of the state touches the statutory requirement of an urgent need to prevent irreparable harm. Only, the materials for judging the recoverability of the harm or the external effect of the suspension are not designated in the scene. Accordingly, matters without materials are not declared impossible but left undetermined. If the purpose is achieved by a suspension of enforcement or of the procedure alone, the choice of suspending the effect as such is narrowed. Reversing this condition, one cannot newly create a conclusion beyond the scope of this section.
The conclusion permitted by this section is to leave as undetermined, distinct from impossibility, matters for which the materials to be judged have not yet been specified. A lack of materials does not immediately lead to non-justiciability or to the exclusion of a suspension of effect. At the same time, a suspension of effect cannot be raised to the obvious choice on the ground that there are no materials. When the object and scope of the suspension are set, the records to be judged are the disposition, the planned enforcement, the nature of the harm, urgency, the public welfare materials, and the decision to suspend. This section stops at guarding the boundary of the undetermined and does not newly define the requirements for the establishment of an individual harm.
3.4The Records Needed for Determination
The circumstances of Applicant A, who fears that even after an action for revocation has been filed the enforcement of the disposition will proceed and that restoration to the state before the judgment on the merits will become difficult, are the starting point for tying the statutory requirement of irreparable harm to specific materials. Yet if the suspension is broader than the necessary portion, the relief itself creates a new burden. In that case the questions are what the court will stop, and what records should be laid down for deciding such a stage.
The textual standard of that determination lies in Article 23 of the Administrative Litigation Act. The same provision states: "②Where an action for revocation has been filed, and where there is an urgent need to prevent irreparable harm that may arise from a disposition, etc., its enforcement, or the continuation of the procedure, the court in which the main action is pending may, upon the application of a party or ex officio (by the court's own authority), decide to suspend the whole or part of the effect of a disposition, etc., its enforcement, or the continuation of the procedure (hereinafter referred to as a 'stay of execution'). Provided, however, that a suspension of the effect of a disposition is not permitted where the purpose can be achieved by suspending the enforcement of a disposition, etc. or the continuation of the procedure." (Article 23 of the Administrative Litigation Act). The subject indicated by this text is the court in which the main action is pending, and the act is a decision to suspend the whole or part of the effect of a disposition, etc., its enforcement, or the continuation of the procedure.
Next, then, the analysis examines what the text of the preceding paragraph requires. From here comes the distinction that, where the purpose can be achieved by a suspension of enforcement or of the continuation of the procedure, a suspension of effect is not permitted. To observe this distinction, the basis and conclusion of the stage-determination must be bound only within the established records. Only the materials recorded in the disposition, the planned enforcement, the nature of the harm, urgency, the public welfare materials, and the decision to suspend fall within the scope of those records. The author takes the view that the stage is determined on the basis of these records alone, and that absent records are not filled in by inference. Filling in absent materials by assumption in order to choose a broad suspension destroys the very distinction of subsidiarity.
The strongest counterargument is aimed at the point that a partial suspension may be insufficient to prevent the harm fully. This counterargument sets out concretely the loss that, if only enforcement is stopped, it misses the disadvantage that the content of the disposition is already being fixed through enforcement; the inconvenience of having to judge the several scopes of suspension separately; and the value of leaving irreparable harm unattended. The criticism that, if suspension is restricted on grounds of the public interest, that harm remains as it is, stands in the same place. Even so, the author's answer does not change. The disadvantage to which the counterargument points still remains, but that disadvantage alone cannot overstep the limit of the subsidiarity of a suspension of effect.
Only one fact is settled in the synthetic scene. This fact merely indicates that materials on the nature of the harm and urgency are needed; it does not determine whether the harm is irreparable, or what effect the suspension has on the public welfare. In what scope enforcement is actually proceeding, and whether the suspension is achieved by enforcement alone, are likewise not fixed by this scene alone. Accordingly, the stage varies with how the disposition, the planned enforcement, the nature of the harm, urgency, and the public welfare materials recorded in the decision to suspend are laid out, and where there are no materials, the matter remains undetermined. If it is confirmed that the purpose is achieved by a suspension of enforcement or of the procedure alone, the choice of suspending the effect as such is narrowed.
Accordingly, the conclusion permitted at this point is to judge within the established records when broadening or narrowing the scope of the suspension, and not to fill in absent records by inference. A suspension of effect is a choice that remains only where the purpose cannot be achieved by a narrow suspension, and in a case where a suspension of enforcement alone suffices, a suspension of effect cannot be used as the obvious choice. If there are no materials for judging the recoverability of the harm or the external effect of the suspension, one can say only that the stage cannot be fixed. Conversely, neither can it be declared that the relief itself is impossible merely because there are no materials.
3.5Circumstances That Change the Decision
If that step opened the way to connecting irreparable harm and an urgent need to concrete materials, the range indicated by those materials must now be matched to the size of the suspension. The question at hand is whether to halt only as much as is necessary to prevent this concern, or whether the effect of the disposition itself must be halted.
The text that answers this question is found in Article 23(2) of the Administrative Litigation Act. That provision provides: "(2) Where an action for revocation has been filed, if there is an urgent need to prevent irreparable harm that may arise from a disposition, etc., or its execution or the continuation of a procedure, the court in which the main action is pending may, upon the application of a party or ex officio, decide to suspend the effect of the disposition, etc., or the whole or part of its execution or the continuation of a procedure (hereinafter referred to as a 'suspension of execution'). Provided, however, that a suspension of the effect of a disposition shall not be permitted where the purpose can be achieved by suspending the execution of the disposition, etc., or the continuation of a procedure." The subject enumerated in the text is the court in which the main action is pending; the object is the effect of the disposition, etc., or its execution or the continuation of a procedure; and the method is suspension in whole or in part (Administrative Litigation Act Article 23).
In this text, the object of suspension divides into two, and the two are not placed on the same footing. One is to halt the effect of the disposition, etc., itself; the other is to halt only the execution of that disposition, etc., or the continuation of the procedure. The author explains this distinction as the subsidiarity of the suspension of effect, meaning the limit that the effect may be halted only when the purpose cannot be achieved by the narrower suspension. This limit does not prohibit suspension of effect itself; rather, in cases where the purpose can already be achieved by the narrower means, it leaves no room for the broader choice.
Here a counterargument enters. A partial suspension may be unable to prevent the harm sufficiently. If, during the interval in which only part of the execution or the procedure is halted, the remaining proceedings enlarge the harm, and if, unless the effect is halted, the original state disappears before the judgment on the merits, then the narrower suspension is a remedy in form only and misses its substance. This loss is not confined to procedural form; it is a detriment that itself destroys the possibility of restoration. So long as the harm targeted by the counterargument is not missed, there is no need to extend suspension of effect over the range that the narrower suspension can already prevent.
Returning to the facts appearing in the synthetic scene, what is confirmed is that Applicant A filed an action for revocation, that the execution of the disposition is under way, and that there is concern that restoration of the state before the judgment on the merits will become difficult. On these facts alone it is not determined whether the purpose can be achieved merely by suspending the execution of the disposition or the continuation of the procedure, or whether the concern is allayed only by halting the effect itself. Materials are further needed to determine the specific nature of the concern and the scope of the suspension, and the range for which there are no materials remains undetermined. The fact that the materials are insufficient neither means that a suspension of effect is necessary nor means that relief is impossible.
The conclusion this section permits is this. In a case where the purpose can be achieved by the narrower suspension, the suspension of effect cannot be demanded as the natural choice; and if it is confirmed that the purpose can be achieved solely by suspending the execution or the procedure, the assessment as to the suspension of effect changes accordingly. The impermissible conclusions are to prohibit suspension of effect forever, or, conversely, to hold that whenever an individual suffers urgent harm the effect must be halted unconditionally.
3.6The Strongest Counterargument and the Answer
The preceding step distinguished whether it is always necessary to suspend the effect of the disposition itself. That is not the present question. The issue is whether, even where harm can be prevented by suspending only the execution or the continuation of the procedure, a suspension that is not narrow—halting even the effect—must nevertheless be chosen, or whether suspension of effect becomes a matter of course by reason of the limits of partial suspension. The burden that relief beyond the necessary scope produces is considered together.
The text of the statute itself draws the breadth of the object of suspension. Article 23(2) of the Administrative Litigation Act provides that where an action for revocation has been filed, if there is an urgent need to prevent irreparable harm that may arise from a disposition, etc., or its execution or the continuation of a procedure, the court in which the main action is pending may, upon the application of a party or ex officio, decide to suspend the effect of the disposition, etc., or the whole or part of its execution or the continuation of a procedure (hereinafter referred to as a 'suspension of execution'). Here the subject is the court in which the main action is pending, and the acts are the suspension of effect and the suspension of the execution or the continuation of the procedure. The scope of the suspension is either whole or part. The text places suspension of effect and suspension of execution side by side, but does not treat the two as the same.
In the proviso to the same paragraph (2), the provision adds: "Provided, however, that a suspension of the effect of a disposition shall not be permitted where the purpose can be achieved by suspending the execution of the disposition, etc., or the continuation of a procedure" (Administrative Litigation Act Article 23). This phrase makes two stages of judgment distinct. The first is whether the purpose of preventing irreparable harm can be achieved by the narrower suspension, namely the suspension of the execution or the continuation of a procedure. The second is whether, when that purpose cannot be achieved by the narrower suspension, the subsidiarity of the suspension of effect—the limit of halting the effect—is satisfied. The earlier stage is asked first because the text makes suspension of effect a subsidiary choice. The conclusion is settled without adding any new requirement here or creating any exception.
The strongest counterargument targets the point that the narrower the scope of the suspension, the more the harm simply remains. A partial suspension may be unable to prevent the harm sufficiently, and if the suspension is restricted on grounds of public interest, the party's irreparable harm is left unaddressed. Since what Applicant A fears is the difficulty of restoring the state before the judgment on the merits, the counterargument holds that if even suspension of effect is excluded, the door to relief is effectively closed. The question must be answered without erasing this disadvantage. Even so, the limit of subsidiarity stated above does not change. If the judgment is reached that the purpose can be achieved by the narrower suspension, suspension of effect is not permitted under the proviso, and suspension of effect comes into question only when materials supporting the inadequacy of the narrower suspension are adduced. The concern of the counterargument merely makes the choice of the scope of suspension careful; it does not make suspension of effect a matter of course.
The facts confirmed in the synthetic scene are that Applicant A filed an action for revocation, that the execution of the disposition is under way, and that there is concern that restoration of the state before the judgment on the merits will become difficult. This concern runs in the same direction as the statutory requirement of preventing irreparable harm. Yet the materials for judgment on the record are the disposition, the planned execution, the nature of the harm, urgency, materials on public welfare, and the suspension decision. If there are no materials with which to judge the recoverability of the harm or the external effect of the suspension, the matter remains undetermined. From this scene alone it cannot be confirmed whether the purpose can be achieved by suspending the execution alone, or whether suspension of effect is necessary. If it is confirmed that the purpose can be achieved by the narrower suspension, suspension of effect is relegated to second place.
What this section permits is the narrow conclusion that follows from preserving the distinction between suspension measures and the order of subsidiarity. So far as irreparable harm and an urgent need are substantiated and the requirements of the scope of suspension and public welfare are met, the suspension of the execution or the continuation of a procedure and the suspension of effect become forms of suspension that the court may select. Conversely, the circumstance alone that a partial suspension cannot sufficiently prevent the harm does not mean that suspension of effect is required. A case in which there are no materials on sufficiency remains undetermined, and the assessment of the statutory route and its effectiveness diverges.
3.7The Link to the Application and the Dispositive Part
From the preceding section the conclusion was carried over that, in a case where suspending the execution alone suffices, suspension of effect cannot be used as the natural choice, but that was an answer to the counterargument. Now, when deciding in this situation what the court is to halt, the question is when the choice of halting the effect of the disposition itself is permitted. In particular, if a suspension broader than the necessary portion enlarges the burden that accompanies relief, within what limit must the court fix the scope of the suspension?
As the text that answers this question, Article 23(2) of the Administrative Litigation Act provides: "Where an action for revocation has been filed, if there is an urgent need to prevent irreparable harm that may arise from a disposition, etc., or its execution or the continuation of a procedure, the court in which the main action is pending may, upon the application of a party or ex officio, decide to suspend the effect of the disposition, etc., or the whole or part of its execution or the continuation of a procedure (hereinafter referred to as a 'suspension of execution'). Provided, however, that a suspension of the effect of a disposition shall not be permitted where the purpose can be achieved by suspending the execution of the disposition, etc., or the continuation of a procedure." (Article 23(2) of the Administrative Litigation Act) In this text the court is the subject that decides the suspension, the application of a party or ex officio is the route by which the procedure is set in motion, and irreparable harm and an urgent need are the requirements for the suspension. Even so, the choice of halting the effect is placed within the later qualifying phrase.
This qualification is a judgment at a stage different from the preceding assessment of requirements. The former asks whether, in a situation where an action for revocation has been filed, the harm and urgency justify the suspension; the latter determines what is to be halted after the suspension is permitted—that is, whether the effect, or the execution or the continuation of the procedure. The subsidiarity of the suspension of effect means, at this second stage, the limit of halting the effect when the purpose cannot be achieved by the narrower suspension. Accordingly, if the difficulty of restoring the state that Applicant A fears can be prevented merely by halting the execution or the continuation of the procedure, the court does not move on to the choice of suspending the effect itself. If there already exists a suspension measure capable of achieving the purpose, suspension of effect is a broader suspension than that one.
If the effect of the disposition remains intact and only the execution is halted, other procedures may advance or the effects of the disposition may accumulate, so that in the end an irreversible state may arise before the judgment on the merits. In such a case, the criticism also operates that restricting the suspension on grounds of public interest leaves the party's irreparable harm unaddressed. However, that criticism opens the door to suspension of effect only in cases where the purpose cannot be achieved by the narrower suspension—that is, cases in which harm remains even after the execution or the continuation of the procedure is halted. Rather than foreclosing the concern of the counterargument, the answer preserves the limit of subsidiarity.
Returning to the synthetic scene, Applicant A's concern is that the execution of the disposition proceeds and that restoration of the state before the judgment on the merits becomes difficult. From this scene alone it cannot be confirmed whether halting the execution alone can prevent the feared difficulty of restoring the state, or whether the effect of the disposition remains and harm accumulates. Materials are needed that set out the nature of the disposition, the specific content of the planned execution, the nature of the harm, urgency, and the effect on public welfare, and the scene did not determine the existence of such materials. Accordingly, the state of insufficient materials for judgment remains undetermined. So long as this condition holds, suspension of effect is not a remaining option.
Thus the conclusion permitted in this section is that suspension of effect is the broadest of the suspension measures and falls back when the purpose can be achieved by the narrower means. The impermissible conclusions are the judgment that the effect of the disposition itself must also be halted merely because the requirements for suspension are satisfied, and the judgment that suspension of effect becomes a matter of course merely because there are limits to partial suspension. Not deciding rashly when there are no materials with which to judge the recoverability of the harm or the external effect of the suspension, and leaving the undetermined as undetermined, is also part of this boundary.
3.8The Scope This Section Undertakes
A's concern points to the need for a suspension, but the range within which things must be halted must be determined separately. The question of this section is over what range the harm that would come too late even if one wins on the merits can be halted.
The provision in question is Article 23(2) of the Administrative Litigation Act. The text provides that where an action for revocation has been filed and there is "an urgent need to prevent irreparable harm that may arise from a disposition, etc., or its execution or the continuation of a procedure," the court in which the main action is pending may decide on the suspension (Administrative Litigation Act Article 23). Here the subject is the court in which the main action is pending, the act is the decision on suspension upon the application of a party or ex officio, and the object is the whole or part of the effect of the disposition, etc., or its execution or the continuation of a procedure. This text does not determine which suspension is to be chosen first.
The same text adds in the proviso that "a suspension of the effect of a disposition shall not be permitted where the purpose can be achieved by suspending the execution of the disposition, etc., or the continuation of a procedure" (Administrative Litigation Act Article 23). This phrase distinguishes two tiers of the object of suspension. One is the narrower suspension, such as the execution or the continuation of the procedure; the other is the broader suspension of halting the effect of the disposition itself. A judgment that observes this subsidiarity is distinct from the reason for halting the effect of the disposition itself.
If the suspension is narrowed by putting public interest and the continuity of administration first, the inability to restore the state that A feared remains as it is. The requirement of an urgent need to prevent irreparable harm must be connected to concrete materials, and those materials divide the scope of the suspension. The answer of subsidiarity, while not erasing the possibility of harm urged by the counterargument, does not permit the broader choice of suspension of effect so long as the purpose can be achieved by the narrower suspension.
What this section confirms is a conditional distinction. The scene does not determine materials concerning the nature of the disposition, the specific content of the planned execution, the urgency of the harm, or public welfare. Therefore, what scope of suspension A's concern requires cannot be confirmed from this scene alone. The subsidiarity of this section is applied when the disposition, the planned execution, the nature of the harm, urgency, materials on public welfare, and the suspension decision come together. The absence of materials does not mean that a suspension is impossible.
Suspension of effect is a subsidiary choice permitted when the purpose cannot be achieved by suspending the execution or the continuation of the procedure. This section deals only with the scope of the suspension, in cases limited to those where the requirement of preventing irreparable harm has already been confirmed. If urgent irreparable harm is not recognized, or if there is a concern that the suspension would have a serious effect on public welfare, the suspension itself is judged differently. The question of that problem, and of how far an individual's harm is to be accepted, is outside the scope of this section. Is a suspension always granted whenever an individual suffers urgent harm?
3.9Application of the Text of the Provisions and the Holdings of Precedents
As confirmed above, the statutory requirement of an urgent need to prevent harm that is difficult to restore must be tied to concrete material. In this scene, what can the provision stop, and to what extent does it direct that things be stopped?
The relevant text provides: “②Where an action for revocation has been filed, if there is an urgent need to prevent harm that is difficult to restore arising from a disposition, etc. or the enforcement thereof or the continuation of procedures thereof, the court in charge of the main case may, upon the application of a party or ex officio (by the court's own authority), decide to suspend … (hereinafter referred to as a ‘stay of enforcement’).” (Article 23 of the Administrative Litigation Act). This language places as its objects, side by side, the effect of a disposition, etc., the enforcement thereof, and the continuation of procedures, and permits the scope thereof in whole or in part. The actor is the court in which the main case is pending, and the occasion for its invocation is the application of a party or ex officio (by the court's own authority).
The proviso that follows immediately upon that language draws one further line between a suspension of effect and a suspension of execution or procedures. The proviso states firmly: “However, a suspension of the effect of a disposition shall not be permitted where the purpose can be achieved by suspending the enforcement of a disposition, etc. or the continuation of procedures thereof” (Article 23 of the Administrative Litigation Act). This is why the two stays are not treated as the same option. The necessary scope of the stay is a matter of the record, to be determined together with the nature and urgency of the harm that is difficult to restore and the material concerning its effect on the public welfare.
This distinction does not waver even before the counterargument that a partial stay may not sufficiently prevent the harm. The counterargument is aimed at the point that, if a stay is restricted on grounds of the public interest, harm that cannot be undone is left unaddressed as it stands. The circumstance that the harm is imminent does not provide grounds for skipping the step of asking whether the purpose can be achieved by a narrow stay.
What is confirmed in the synthetic scene is only that the enforcement of the disposition is in progress and that Applicant A is concerned about the difficulty of restoring the state prior to the judgment on the merits. To what extent this fact substantiates the nature and urgency of the harm that is difficult to restore, and how great the effect of a stay on the public welfare would be, are not fixed by the material. Accordingly, the condition remains in place that, if the purpose can be achieved by suspending execution or procedures alone, the option of suspending the effect itself is narrowed. However, as there is no material by which to judge the recoverability of the harm or the external effect of the stay, whether the subsidiarity requirement is satisfied remains undetermined.
What can be said in this section is that subsidiarity applies to a suspension of effect within the scope of that language; what cannot be said is the judgment that the harm to Applicant A already satisfies the requirements for a suspension of effect. An interpretation extended by reasons for judgment and the like is not the answer to this question.
3.10Fine Distinctions Within the Stage
In this scene, what part within the stay of administrative action prior to judgment must be separately determined? The question is not when a stay is possible, but what is to be stopped and to what extent. Since the effect of a disposition and its enforcement or the continuation of procedures are different objects, which of them is to be stopped is separately settled even within a single stay decision. The choice of stopping the effect itself beyond the necessary part may become a way of creating a new burden instead of widening the scope of relief.
Article 23 of the Administrative Litigation Act has carried this distinction into its language. Article 23 (2) provides: “The court in charge of the main case may, upon the application of a party or ex officio (by the court's own authority), decide to suspend, in whole or in part, the effect of a disposition, etc., or the enforcement thereof or the continuation of procedures thereof (hereinafter referred to as a ‘stay of enforcement’),” thereby dividing the objects of a stay into effect, enforcement, and continuation of procedures. The same paragraph adds “in whole or in part,” allowing the scope to be divided, and sets the ground for a stay as “where there is an urgent need to prevent harm that is difficult to restore.” To what extent the court stops which object is determined within the actor, act, and condition prescribed by this language.
The conclusion of that language is the subsidiarity of a suspension of effect. This means the limit that the effect is stopped only when the purpose cannot be achieved by a narrow stay. The proviso of the same Article writes: “A suspension of the effect of a disposition shall not be permitted where the purpose can be achieved by suspending the enforcement of a disposition, etc. or the continuation of procedures thereof” (Article 23 of the Administrative Litigation Act). The reason for keeping this distinction is that whether the requirement of harm that is difficult to restore is satisfied, and by what means an established stay is to be achieved, are different stages of judgment. Even after the former is established, if one skips the latter and arrives directly at a suspension of effect, it becomes a choice made without confirming whether the purpose can be achieved by a suspension of execution or procedures alone. It does not follow that, because a stay satisfies the requirements, its scope must also be broad.
The strongest counterargument is that a narrow stay may not sufficiently prevent the harm. It is the concern that, with a partial stay alone, the effects of the enforcement already under way may not be completely removed, or that, even after the continuation is stopped, the external effect of the disposition may continue to operate so that Applicant A's restoration of the state remains incomplete. The point that, if a stay is restricted on grounds of the public interest, harm that cannot be undone is left unaddressed also forms part of this counterargument. That disadvantage should not be erased. The counterargument points out only the limits of a narrow stay; it does not demand a suspension of effect even in cases where the purpose can be achieved by narrow means.
The standard of determination in this section divides narrowly into cases where it operates, cases where it is blocked, and cases that remain undetermined. A stay operates where the harm that is difficult to restore and the urgency are substantiated and the necessary scope of the stay and the public welfare restriction are satisfied; it is blocked where urgent irreparable harm is not recognized or where there is a risk that the stay will have a serious effect on the public welfare. Cases where there is no material by which to judge the recoverability of the harm or the external effect of the stay remain undetermined. The items to cross-check against the record are the disposition, the scheduled execution, the nature of the harm, urgency, the public welfare material, and the stay decision. Since the only thing settled in the scene is Applicant A's concern, recoverability or external effect cannot be determined on this material alone.
The conclusion permitted in this section is to limit the objects and scope of a stay to the extent the requirements are satisfied, and to set a suspension of effect as the limit applying when the purpose cannot be achieved by a narrow stay. The conclusion not permitted here is the one to the effect that, where there is urgent harm, a suspension of effect follows as a matter of course. Substantiation of urgency denotes satisfaction of the requirements for a stay; it does not settle the choice of the object, namely the effect. In the same way, pointing out the limits of a partial stay does not prove the need for a suspension of the entire effect, and items on which the material is empty remain undetermined while the narrow conclusion is maintained. The choice of stopping beyond the necessary part is settled within this boundary so that the relief itself does not become a new burden.
3.11Synthesis of Effectiveness, Blockage, and Undetermination
In this scene, it remains in issue what the court is to stop before judgment, and how the scope of the stoppage is to be determined. That is, a standard is required for distinguishing whether the door to a stay opens, whether it is blocked, or whether it remains undetermined for want of material for judgment.
According to that provision, "Where an action for revocation has been filed, if there is an urgent need to prevent harm that is difficult to restore arising from a disposition, etc. or the enforcement thereof or the continuation of procedures thereof, the court in charge of the main case may, upon the application of a party or ex officio (by the court's own authority), decide to suspend, in whole or in part, the effect of a disposition, etc., or the enforcement thereof or the continuation of procedures thereof (hereinafter referred to as a 'stay of enforcement')." Here the object is the disposition, etc. after the action for revocation has been filed, the actor is the court in which the main case is pending, and the act is the suspension, in whole or in part, of the effect, enforcement, or continuation of procedures.
The proviso of the same paragraph provides: "However, a suspension of the effect of a disposition shall not be permitted where the purpose can be achieved by suspending the enforcement of a disposition, etc. or the continuation of procedures thereof" (Article 23 of the Administrative Litigation Act). What this language requires is the subsidiarity of a suspension of effect. Once the harm that is difficult to restore and the urgency are substantiated, the door to a stay opens, but even then, if the purpose can be achieved by a suspension of execution or of the continuation of procedures alone, the choice of stopping the effect itself closes. Only when the necessary scope and the public welfare restriction are satisfied together does a suspension of effect remain.
The counterargument is aimed at the point that a partial stay may not sufficiently prevent the harm. The reproach follows that, if a stay is restricted on grounds of the public interest, the party's harm that cannot be undone is left unaddressed. That disadvantage does not disappear. Yet the mere circumstance that the blow is great cannot make a suspension of effect the natural choice. In a matter where a suspension of execution alone suffices, a suspension of effect cannot be used as the natural choice, and this is a boundary to be observed irrespective of the fact that the harm is grave. Once it is determined that the purpose can be achieved by narrow means, a suspension of effect does not remain.
In the synthetic scene, only the fact is settled that Applicant A is concerned that the restoration of the state prior to the judgment on the merits will become difficult. That fact is the starting point to be compared with the material for judgment on whether the harm that is difficult to restore and the urgency are substantiated. However, if the material for judging the recoverability of the harm or the external effect of the stay is lacking, that part remains undetermined. In light of this condition, the scene alone cannot settle even the scope of the stay.
The conclusion permitted in this section goes no further than distinguishing three cases—the conditions under which it opens, the conditions under which it is blocked, and the undetermined—within the limit of stopping the effect when the purpose cannot be achieved by a narrow stay. Where urgent irreparable harm is not recognized or where there is a risk that the stay will have a serious effect on the public welfare, the door to a stay closes, and a conclusion for which there is no material can neither be hastily opened nor closed. The conclusion of using a suspension of effect as the natural choice in a matter where a suspension of execution alone suffices is not permitted by this section.
3.12Conclusion Carried Over to the Next Section
In this scene, when the court determines the object to be stopped, must it suspend even the effect of the disposition itself on the sole ground that the harm that is difficult to restore and the urgent need have been substantiated?
Article 23 (2) of the Administrative Litigation Act provides: “Where an action for revocation has been filed, if there is an urgent need to prevent harm that is difficult to restore arising from a disposition, etc. or the enforcement thereof or the continuation of procedures thereof, the court in charge of the main case may, upon the application of a party or ex officio (by the court's own authority), decide to suspend, in whole or in part, the effect of a disposition, etc., or the enforcement thereof or the continuation of procedures thereof (hereinafter referred to as a ‘stay of enforcement’).” Under this language, the court is the court in which the main case is pending, and it decides on a stay upon the application of a party or ex officio (by the court's own authority) (Article 23 of the Administrative Litigation Act).
The objects of the stay indicated by that language are divided into the effect of a disposition, etc. and the enforcement thereof or the continuation of procedures, and the scope is permitted in whole or in part. Here, the enforcement or continuation of procedures means a narrow stay that leaves the effect of the disposition as it is and stops only the enforcement procedure or the procedure of continuation. A suspension of effect is a term denoting a broad stay that stops the effect of a disposition, etc. as such. Yet the proviso sets the limit of the subsidiarity of a suspension of effect. Thus, even if the court recognizes the harm that is difficult to restore and the urgent need, if the purpose can be achieved by a suspension of the enforcement or of the continuation of procedures, it observes the subsidiarity whereby a suspension of effect is not permitted.
If the contention is that the difficulty of restoring the state, of which Applicant A is concerned, is not prevented merely by the progress of the enforcement procedure but arises at the point when the effect of the disposition itself takes shape, then a narrow stay is one that cannot hold off that harm to the end. The reproach that, if a stay is restricted on grounds of the public interest, the party's harm that cannot be undone is left unaddressed also arises from the same place. Even so, the author's answer does not change. The language of the proviso does not skip the limit of the subsidiarity of a suspension of effect merely because the individual's harm is urgent.
When this limit is compared with the synthetic scene, the fact alone that Applicant A is concerned that, if the enforcement of the disposition proceeds, restoration of the state prior to the judgment on the merits will become difficult does not settle the need for a suspension of effect. It must appear on the record whether a suspension of execution or of the continuation of procedures suffices to prevent that concern, or whether the purpose cannot be achieved unless the effect itself is stopped. The record used for the judgment consists of the disposition, the scheduled execution, the nature of the harm, urgency, the public welfare material, and the stay decision. Yet in this scene no year, amount, or commencement date is set, and no material is given for judging the recoverability of the harm or the external effect of the stay. Accordingly, the state of want of material is undetermined, and it cannot be asserted, on that circumstance alone, that a stay itself is impossible.
The conclusion permitted in this section is narrow. Where the harm that is difficult to restore and the urgent need are substantiated and the necessary scope of the stay and the public welfare restriction are satisfied, the court first examines whether the purpose can be achieved by a suspension of the enforcement or of the continuation of procedures instead of a suspension of effect. If that purpose can be achieved, a suspension of effect does not become the natural choice. The impermissible conclusion is equally clear. To read it as meaning that, because urgent harm has been confirmed, the effect of the disposition itself must at once be suspended runs contrary to this proviso.