Summary
The barring condition of a risk of serious effect on public welfare must also remain part of the same determination.
4.1The Standard by Which the Path Opens
A decision that prevents harm to one individual may create serious harm to others. Applicant A has filed an action for revocation but fears that, if enforcement of the disposition proceeds, the restoration of the state of affairs before the judgment on the merits will become difficult. If the purpose can be achieved by staying the enforcement or the continuation of the procedure, subsidiarity, which renders suspension of effect unavailable, is respected. On this premise, the questions are whether a suspension is granted whenever there is urgent harm to an individual, and, further, what the standard is for opening the channel of this relief. Whether urgent harm alone automatically yields a suspension, or whether that harm is assessed together with the other requirements, is the starting point of the explanation that follows.
The provision corresponding to this question is Article 23(3) of the Administrative Litigation Act. That provision states: "A suspension of enforcement shall not be permitted where there is a risk of a serious effect on the public welfare." The actor indicated by this provision is the party seeking the suspension, the act is the suspension of the enforcement or the effect of the disposition, and the condition is the existence of a risk of a serious effect on the public welfare. Here, the public welfare limitation means a statutory condition of non-permission concerning the social impact of the suspension. This paragraph addresses only the condition of non-permission and does not fix the other requirements of the provision.
Under this provision, the condition of non-permission known as a risk of a serious effect on the public welfare must likewise be left within the same determination. That is to say, where irreparable harm and urgency are demonstrated and the required scope of the suspension and the public welfare limitation are both satisfied, the entrance to this relief opens. The foregoing requirement of urgent harm to the individual and the subsequent requirement of a serious effect on the public welfare are assessments pointing in different directions, and are therefore kept separate rather than read as one. Only by distinguishing these two steps can one separately state the conclusion that a suspension is automatically granted upon a demonstration of harm that is difficult to remedy alone, and the conclusion that, even where such harm exists, the condition of non-permission remains.
The strongest counterargument to this standard is the risk that an abstract public interest rationale may override individual relief. If suspension is limited on grounds of public interest, the party's irreparable harm is left unaddressed, and a public interest in name only takes precedence over actual harm; this counterargument thus targets an inconvenience that cannot be ignored. Even so, one cannot write that the mere label of public interest has proven the risk of a serious effect. The risk of a serious effect must be presented as the basis for judging the social impact of the suspension, and the mere fact that the label is attached does not get recorded as satisfying the condition of non-permission. While leaving intact the risk of unaddressed harm identified by the counterargument, one adds the qualification that this risk is not justified merely by the name of public interest.
The facts ascertainable in the synthetic scene are only that Applicant A filed an action for revocation and that A fears that, if enforcement of the disposition proceeds, restoration of the state of affairs before the judgment on the merits will become difficult. These facts are the subject of review under the foregoing condition that irreparable harm and urgency must be demonstrated. Materials concerning the public welfare, the degree of the suspension's impact on society, and whether the requested performance, the parties, and the conditions are specified do not appear in the scene. Accordingly, the extent to which there are no materials for judging the recoverability of the harm or the external impact of the suspension remains undetermined. The check that alters the condition—namely, that if the purpose can be achieved by staying the enforcement or the procedure alone, the option of suspending the effect itself is narrowed—does not substitute for the judgment on the entrance standard of this section.
The conclusion this section permits is that, where urgent harm to an individual and urgency are demonstrated and the required scope of the suspension and the public welfare limitation are satisfied together, and where a specified claim and a defensible choice of action follow, the channel of this relief opens. The conclusions it does not permit are that a suspension is always granted upon urgent harm alone, and that the condition of non-permission is deemed satisfied on the ground that the mere label of public interest has proven the risk of a serious effect. What lacks materials is undetermined; it does not immediately become an inability to obtain relief.
4.2The Conditions That Block Relief
The subsidiarity set out in the preceding step is only the starting point of the present determination. If so, is a suspension always permitted once urgent harm to an individual is recognized? If not, what are the conditions under which this stage of relief closes?
To answer this question, one first examines the corresponding provision of this section. Article 23(3) of the Administrative Litigation Act provides: "A suspension of enforcement shall not be permitted where there is a risk of a serious effect on the public welfare" (Administrative Litigation Act Article 23). This provision addresses the act of suspension of enforcement and whether it is permitted. The actor spoken of here is the court that decides whether to permit the suspension, and the act is the suspension of the administrative action before judgment. The condition is set in the form of a risk of a serious effect on the public welfare that the suspension would cause. This paragraph refers not to the requirements of the suspension as a whole, but only to the condition of non-permission concerning the public welfare.
Connecting this provision to the subsidiarity set out above makes the standard of decision clear. This is because the positive requirement of preventing urgent harm to the individual and the negative requirement concerning the impact the suspension will have on society are placed together. A suspension is permitted only where irreparable harm and urgency are demonstrated and the required scope of the suspension and the public welfare limitation are both satisfied. These two conditions are not substitutes for one another. If urgent irreparable harm is not recognized, the analysis stops at the first requirement; if there is a risk that the suspension will have a serious effect on the public welfare, it stops at the second requirement. If any one of these statutory requirements is not satisfied, the channel of this relief closes.
The disadvantage targeted by the counterargument—that limiting suspension on grounds of public interest may leave the party's irreparable harm unaddressed—is concrete. If enforcement continues as A fears, the state of affairs before the judgment on the merits becomes difficult to restore, and that loss is hard to reverse after time has passed. Placing such harm behind the name of public welfare risks stripping individual relief of its meaning. This disadvantage cannot be erased, but neither can the statutory requirements be circumvented. If there is a risk that the suspension will have a serious effect on the public welfare, the suspension is not permitted, and even in that case one cannot write that the mere label of public interest has proven the risk of a serious effect. The risk of a serious effect is a matter to be examined separately through materials concerning the public welfare, and an abstract public interest assertion alone does not fill that proof.
The facts that can be ascertained from the synthetic scene are that Applicant A filed an action for revocation, that enforcement of the disposition is under way, and that A fears restoration of the state of affairs before the judgment on the merits will become difficult. These facts bear directly on the foregoing condition requiring the demonstration of urgent irreparable harm and urgency. The scene, however, contains no materials for judging the recoverability of the harm or the external impact of the suspension. Accordingly, whether A's harm is difficult to remedy and whether there is a risk that the suspension will have a serious effect on the public welfare remain undetermined for lack of materials. This indeterminacy does not itself mean an inability to obtain relief, and what this section fixes is only the distinction between the conditions.
The conclusion permitted in this section is clear. One cannot assert that urgent harm to an individual leads directly to a suspension, and the door to suspension opens only where all the statutory requirements are in place. Two conclusions are not permitted: the judgment that urgent harm alone always results in a suspension, and the judgment that the risk of a serious effect has been proved by the name of public welfare alone. If the purpose can be achieved by staying the enforcement or the procedure alone, the option of suspending the effect itself is narrowed.
4.3The Boundary That Remains When There Is No Data
The question whether urgent harm to an individual always results in a suspension proceeds from the premise that, even where irreparable harm and urgency are present, a suspension is not immediately permitted. What this stage addresses next is the boundary that cannot be fixed for lack of materials.
The provision corresponding to this stage is the latter part of Article 23 of the Administrative Litigation Act. That provision states: "A suspension of enforcement shall not be permitted where there is a risk of a serious effect on the public welfare" (Administrative Litigation Act Article 23). The actor under this provision is the court that decides the suspension, the act is the granting of a suspension of enforcement of the disposition, and the condition is the existence of a risk of a serious effect on the public welfare.
This condition is placed alongside the subsidiarity maintained in the preceding section. If subsidiarity narrows the range of options for suspension, the public welfare limitation blocks that option from being granted at all. The recoverability of the harm and the external impact of the suspension require different materials for judgment, and only by distinguishing the two can one specify the locus of the indeterminacy. Where there are no materials for judging the recoverability of the harm or the external impact of the suspension, matters whose materials of judgment are not specified are left undetermined, distinguished from impossibility.
There is a risk that an abstract public interest rationale will override individual relief. This is because limiting suspension on grounds of public interest leaves the party's irreparable harm unaddressed. Since a risk of a serious effect on the public welfare is a condition of non-permission, what materials support that risk must be left within the same determination, and the label does not stand in for the materials.
This risk overlaps with the question of demonstrating urgent irreparable harm, but materials concerning the external impact the suspension will have on others do not appear in the scene. Among the disposition, the scheduled enforcement, the nature of the harm, urgency, the public welfare materials, and the suspension decision, so long as the public welfare materials are not confirmed, that item remains undetermined for lack of materials and does not turn into an inability to obtain relief.
The conclusion this section permits is to leave matters whose materials of judgment are not specified undetermined, distinguished from impossibility; the conclusion it does not permit is to fix such a lack of materials at once as either permission or refusal. Nor is the suspension application itself barred merely because it is undecided whether there is a risk of a serious effect on the public welfare.
4.4The Records Needed for Determination
On the premise of subsidiarity—that if the purpose can be achieved by staying the enforcement or the continuation of the procedure, suspension of effect is not permitted—this section treats together the question whether urgent harm to an individual always results in a suspension, and the question "Which records are needed?" for that determination.
The provision corresponding to this question is contained in Article 23 of the Administrative Litigation Act. Therein it states: "A suspension of enforcement shall not be permitted where there is a risk of a serious effect on the public welfare" (Administrative Litigation Act Article 23). This provision takes as its subject of examination not the party individual who applied for a suspension of enforcement, but the social impact that the suspension will bring about. What the court, as the examining body, must judge is whether there is a risk of a serious effect on the public welfare, and the condition set by the provision is that where such a risk exists, a suspension of enforcement is not permitted.
The reason this condition must be left within the same determination is that the public welfare limitation is a statutory condition of non-permission concerning the social impact of the suspension. The standard of decision for this determination lies in the specified records, and those records are the disposition, the scheduled enforcement, the nature of the harm, urgency, the public welfare materials, and the suspension decision. The author judges the stage solely on the materials recorded in the disposition, the scheduled enforcement, the nature of the harm, urgency, the public welfare materials, and the suspension decision. The stage is judged on the specified records alone, and missing records are not filled with conjecture. The reason for distinguishing the public welfare materials from the materials on the nature of the harm here is that the former is an element of the condition of non-permission concerning the social impact the suspension has on others, while the latter is an element of the applicant side's difficulty of restoration.
The strongest counterargument targets the risk that an abstract public interest rationale will override individual relief. Limiting suspension on grounds of public interest leaves the party's irreparable harm unaddressed. Where, as Applicant A fears, restoration of the state of affairs before the judgment on the merits becomes difficult, the harm that the suspension prevents is hard to measure, and the cost of that waiting falls entirely on the individual. This disadvantage must not be erased, and the concrete loss identified by the counterargument remains within the same determination. A circumstance bearing the name of public welfare functions only as materials proving the social impact of the suspension, and the name itself says nothing about the satisfaction of the condition of non-permission.
The facts in the synthetic scene relevant to this question are that Applicant A filed an action for revocation, that enforcement of the disposition is under way, and that A fears restoration of the state of affairs before the judgment on the merits will become difficult. The foregoing condition consists of the disposition, the scheduled enforcement, the nature of the harm, urgency, the public welfare materials, and the suspension decision; the scene describes only the concerns as to the nature and urgency of the applicant side's harm and provides no materials recorded in the public welfare materials or the suspension decision. Accordingly, whether the applicant's harm is difficult to remedy, whether there is a risk that the suspension will have a serious effect on the public welfare, or what the external scope of that effect is, cannot be fixed on the scene alone. Only one condition—that if the purpose can be achieved by staying the enforcement or the procedure alone, the option of suspending the effect itself is narrowed—falls within the scope of this determination.
What this section permits is the posture of judging the stage on the specified records; it does not permit filling missing records with conjecture in order to reach a hurried conclusion. The condition of non-permission known as a risk of a serious effect on the public welfare must also be left within the same determination, and to write that this risk has been proved by the name of public interest alone is likewise not the province of this section. In the same vein, to write that a suspension is always permitted upon the applicant's urgent harm alone is not the conclusion of this section.
4.5Circumstances That Change the Decision
Placing these contrasting harms side by side is the starting point of this section. This determination rests on the disposition, scheduled enforcement, the nature of the harm, urgency, public welfare materials, and the stay decision. Without that record, the conclusion remains undetermined. The question then remains whether, even when an individual's urgent harm is recognized, a stay is always permitted, or whether the social impact of the stay is filtered separately.
The provision that answers this question is found in paragraph (3) of Article 23 of the Administrative Litigation Act. The subject this sentence addresses is the court that decides whether to permit a stay; the act is the granting of a stay of execution of a disposition; and the condition is the existence of a concern that it will have a serious impact on the public welfare. Here, the public welfare restriction means the statutory ground for refusal concerning the social impact of a stay. This provision does not address the separate issues of other provisions.
The above provision creates a point at which the stay determination asks about social impact separately from the urgency of the harm. The conclusion the author confirms is that where the purpose can be achieved by a stay of execution or procedure alone, the choice of suspending the effect itself is narrowed. The reason these two choices must be distinguished is that, even though the purpose can be achieved by the former, proceeding to the latter may carry the scope of the stay beyond the necessary line. At the same time, the ground for refusal of a concern that it will have a serious impact on the public welfare must remain within the same determination. This condition must not be set apart but must be handled together within the same procedure that examines the urgency of the harm.
The most persuasive counterargument targets the risk that an abstract public interest rationale will override individual relief. Where a stay is restricted on grounds of public interest, the party's irreparable harm is left as it is; in that respect, this counterargument threatens not only the actual loss but also the value of the reassurance a stay provides. The public welfare restriction is a statutory ground for refusal addressing the social impact of a stay; the requirement is not satisfied merely because the other party invokes the words public interest. Within this scope, the conclusion is maintained, leaving in place even the disadvantage of the counterargument, namely the inconvenience of delayed relief.
In the synthetic scene, the facts bearing on the present determination are that Applicant A has filed an action for revocation, that enforcement of the disposition is under way, and that A is concerned that restoration of the status will become difficult before the judgment on the merits. These facts lead to materials for judging the nature and urgency of the harm, but as yet nothing has been determined as to materials that would distinguish a concern that it will have a serious impact on the public welfare. Setting against the condition that where the purpose can be achieved by a stay of execution or procedure alone the choice of suspending the effect itself is narrowed, a re-determination is made in the direction of narrowing the scope of the stay that is necessary. Since the scene alone cannot fix even the breadth of the impact the stay has on the public welfare, that point remains undetermined.
What this section permits is a determination that, even where there is urgency of harm, examines the social impact of the stay together, and that suspension of the effect itself is limited to the necessary choice where the purpose can be achieved by a stay of execution or procedure alone. What is not permitted is the determination that a stay is always permitted on the strength of an individual's urgent harm alone, and the determination that a concern of serious impact is treated as proven merely by the name public interest. Where there are no materials to judge the recoverability of the harm or the external effect of the stay, this narrow distinction already established is maintained, but the fixing of the conclusion is postponed to a later place.
4.6The Strongest Counterargument and the Answer
In this scene, A seeks a stay to prevent the irreparable harm that will arise from the progress of enforcement. Yet that stay itself may leave serious harm to others. Then is a stay always granted whenever there is an individual's urgent harm?
Before answering this question, I first place the relevant provision of this section here. One of the conditions that distinguishes whether a stay is permitted concerns the public welfare. That provision reads as follows. "(3) A stay of execution shall not be permitted where there is a concern that it will have a serious impact on the public welfare." (Article 23 of the Administrative Litigation Act). Here the subject is not the party who applied for the stay but the court that decides the stay, and the act is the judgment on whether to permit the stay. The condition is that there is a concern that the stay will have a serious impact on the public welfare.
The ground for refusal this provision indicates touches the conclusion of this section stated in the preceding paragraph. What the provision requires is a concern of a serious impact on the public welfare, and that where such concern exists a stay is not permitted. Two stages are separated here. One is to discern what social impact the stay will produce; the other is to discern whether that impact reaches a serious concern. The designation public interest does not substitute for the question of fact as to the former.
The strongest counterargument targets the loss this distinction carries. As A fears, if enforcement proceeds, harm will remain that cannot be restored to the original state before the judgment on the merits, and that harm may not be filled even by recovery following the judgment. To block a stay while knowing of such harm weakens, by itself, the purpose of the procedure, which is individual relief. The disadvantage of leaving matters unaddressed that the counterargument points out remains as it is, but that disadvantage alone does not prove the concern of a serious impact on the public welfare.
The analysis now returns to this scene. A seeks a stay, concerned that, as enforcement of the disposition proceeds, restoration of the status will become difficult before the judgment on the merits. This scene contains the nature and urgency of the harm. Yet no materials on the serious impact the stay would leave on others are contained in the scene. If the public welfare restriction is a statutory ground for refusal concerning the social impact of a stay, then without materials showing that social impact the concern of serious impact is not fixed either. The circumstance that there are no materials remains undetermined. It does not mean that a stay is immediately disallowed.
The conclusion this section permits is narrow. It cannot be asserted that a stay is always permitted on the strength of an individual's urgent harm alone, nor can it be asserted that a stay must be blocked merely by the name public interest. As seen above, if the purpose can be achieved by a stay of execution or by halting the continuation of procedure, a suspension of effect is not permitted. The concern of a serious impact on the public welfare is a separate requirement remaining in the same determination, and that concern must be stated in materials. Until those materials are supplied, whether a stay is permitted remains undetermined.
4.7The Link to the Application and the Dispositive Part
In this scene A wishes to seek a stay before judgment. Yet it is difficult to conclude on whether to grant a stay without also examining the effect that a stay preventing A's harm has on the many. The preceding section has already supplied the premise that a concern of serious impact cannot be said to have been proven merely by the name public interest, and the question whether a stay is always granted when there is an individual's urgent harm is now examined in turn.
The relevant statutory provision is set out thus: "(3) A stay of execution shall not be permitted where there is a concern that it will have a serious impact on the public welfare" (Article 23 of the Administrative Litigation Act). This provision takes the act of a stay of execution as its subject and specifies the legal effect that where the condition of a concern that it will have a serious impact on the public welfare is established, it shall not be permitted. The subject spoken of here is not the party who claimed the stay but the court that will decide whether the stay is permitted, and the object of examination is not the applicant individual's harm but the impact that the measure of the stay leaves on society as a whole.
The above provision and the conclusion of this section are connected thus. Even where irreparable harm to an individual and urgency are recognized, the blocking condition called the public welfare restriction remains, and the public welfare restriction means the statutory ground for refusal concerning the social impact of a stay. The determination protecting the circumstances of Applicant A and the determination verifying the social impact caused by the stay must be examined as separate stages. This is because the recognition of the circumstances at the former stage cannot be taken to have automatically satisfied even the ground for refusal at the latter stage. In the end, one cannot assert that a stay is always permitted on the strength of an individual's urgent harm alone.
The position most strongly opposing this conclusion lies in the risk that an abstract public interest rationale will override individual relief. It is a counterargument emphasizing that if a stay is restricted on grounds of public interest, the party's irreparable harm is inevitably left unaddressed, and that it is difficult to reverse that harm later. The disadvantage the counterargument points out cannot be treated lightly. Still, the answer the author maintains is clear. That the public welfare restriction remains does not mean that a stay can be blocked merely by presenting the words public interest; the requirement of a concern of serious impact must actually be examined.
Among the facts of the synthetic scene, the part fitting this question is that A is concerned that, if enforcement of the disposition proceeds, restoration of the status will become difficult before the judgment on the merits. This fact corresponds to materials substantiating the nature and urgency of the harm at the stage of stay of administrative action before judgment. Only, since no public welfare materials or concrete content of the stay decision are set in the scene, it is difficult to assert from this scene alone that the stay raises a concern of serious impact on the public welfare. Where there are no materials to judge the recoverability of the harm or the external effect of the stay, the matter remains undetermined.
The conclusion this section permits is that, even where an individual's urgent harm has been substantiated, the ground for refusal of a concern that it will have a serious impact on the public welfare remains in the same determination. The conclusions not permitted are both sides: the view that a stay is always permitted on the strength of an individual's urgent harm alone, and, conversely, the view that a concern of serious impact has been proven merely by the name public interest. The condition that where the purpose can be achieved by a stay of execution or procedure alone the choice of suspending the effect itself is narrowed is also left in place.
4.8The Scope This Section Undertakes
After subsidiarity has been confirmed above, what is asked here is the question whether, when there is an individual's urgent harm, a stay is always granted. Since a stay of execution is a means of preventing an individual's difficulty of recovery and at the same time bears effects upon the many, this question cannot be answered by the applicant's harm alone. Accordingly, whether the circumstances on the side permitting a stay and the circumstances on the side blocking it are placed within the same determination becomes the issue.
The relevant Article provides: "(3) A stay of execution shall not be permitted where there is a concern that it will have a serious impact on the public welfare." The subject this provision establishes is the court examining the stay of execution; the target act is the stay that halts the enforcement or the effect of a disposition; and the requirement is that there is a concern that it will have a serious impact on the public welfare. The manner of application or the provision of security established in other paragraphs of the provision is outside the scope of this section.
The provision establishes that even where irreparable harm and urgency are recognized, if there is a concern that it will have a serious impact on the public welfare, a stay is not permitted. At this point the two determinations are different stages. The former stage is concerned with whether the applicant individual's harm is difficult to reverse before the judgment on the merits; the latter stage is concerned with whether the impact that the stay has on society as a whole is serious. As for the question whether a stay is always granted when there is an individual's urgent harm, one cannot answer 'always,' because the ground for refusal must remain in the same determination.
The public welfare restriction draws criticism in that an abstract public interest rationale can override an individual's irreparable harm. If harm that cannot be reversed remains with the applicant unless things stop now, refusing the decision that prevents it in the name of the public produces the result of abandoning the person most urgently in need. That does not, however, reverse the conclusion. The court must judge the concern on materials about what social impact the stay will have, and the disadvantage of leaving matters unaddressed that the counterargument points out remains, not erased, in that determination.
What is confirmed in this scene is the fact that the applicant has filed an action for revocation, that enforcement of the disposition is under way, and that there is concern that restoration of the status will become difficult before the judgment on the merits. These circumstances are placed as materials on the substantiation of irreparable harm and urgency. Only, this scene does not contain materials for judging the impact the stay has on the public welfare. Accordingly, for now, whether the public welfare restriction is satisfied remains undetermined. Neither recoverability nor external effect can be fixed by adding names of persons, or years, amounts, or commencement dates that the scene does not contain.
The conclusion this section permits is narrow. Even where an individual's urgent harm has been substantiated, if there is a concern that it will have a serious impact on the public welfare, a stay is not permitted, and it is confirmed further that the concern is not filled merely by the name public interest. The conclusion this section does not permit is also clear. Dismissing a stay application solely because public welfare has been invoked, or conversely a determination granting a stay as a matter of course solely on the applicant's urgent harm, falls outside this scope. The outcome of a real case or recovery results cannot be fixed here either.
4.9Application of the Text of the Provisions and the Holdings of Precedents
The subsidiarity that if the purpose can be achieved by a stay of execution or by halting the continuation of procedure, a suspension of effect is not permitted, has already been accepted. Now the question whether, when there is an individual's urgent harm, a stay is always granted is addressed only by the wording of the relevant source text. The basis for the determination in this section is the wording of paragraph (3) of Article 23 of the Administrative Litigation Act.
The relevant source text declares: "(3) A stay of execution shall not be permitted where there is a concern that it will have a serious impact on the public welfare." (Article 23 of the Administrative Litigation Act). The subject this provision indicates is the court deciding the stay of administrative action before judgment, and the act is the determination on whether a stay of execution is permitted. The condition is that there is a concern that the stay of execution will have a serious impact on the public welfare, and the effect is that it shall not be permitted.
This provision requires that one distinguish the two determination stages of an individual's urgent harm and the public welfare. Even in a case where irreparable harm and urgency have been substantiated, the scope of the stay and the public welfare restriction must be satisfied separately. Conversely, where there is a concern that it will have a serious impact on the public welfare, the stay is not permitted on that condition alone. If the two stages are mixed, errors arise of permitting a stay on the individual's harm alone or blocking a stay in the name of public interest alone.
The counterargument that there is a risk that an abstract public interest rationale will override individual relief is well founded. If a stay is restricted on grounds of public interest, the relief of the party who will suffer irreparable harm is left unaddressed. Yet one cannot write that a concern of serious impact has been proven merely by the designation public interest. The court judging the ground for refusal requires concrete materials concerning the social impact of the stay, and the condition cannot be satisfied by abstract assertions alone.
In the synthetic scene, A's harm has the character of difficulty in restoring the status before the judgment on the merits due to enforcement of the disposition. Even assuming that the urgency of this harm is substantiated, the scope of the stay must be limited to what is necessary, and materials for judging whether there is a concern of serious impact on the public welfare are required. The scene provides only the facts needed for this question, and materials on the recoverability of the harm or the external effect of the stay remain undetermined.
What this section permits is taking the wording of the relevant source text as the basis for determining the stay of administrative action before judgment, and leaving the ground for refusal in the same determination. What is not permitted is extending it to the reasons for judgment or to other paragraphs, or asserting that a concern of serious impact has been proven merely by the public interest designation. If materials are lacking, the matter is undetermined; it does not immediately become a denial of relief.
4.10Fine Distinctions Within the Stage
After upholding the subsidiarity—that if the purpose can be achieved by staying execution or the continuation of procedure, a stay of effect is not permitted—the remaining question is what is to be subdivided and determined again within the assessment into which the individual urgent harm has entered.
The provision corresponding to this question is Article 23 of the Administrative Litigation Act. Its paragraph (3) provides that "a stay of execution shall not be permitted where there is a risk of serious impact on the public interest." The subject this provision addresses is the court deciding the stay of execution; the conduct is the granting of the stay of execution; and the condition is that the stay carries a risk of serious impact on the public interest.
The foregoing provision connects directly with the conclusion of this section. The detailed distinctions within the stage are confined to the case where it operates, the case where it is blocked, and the case where it remains undetermined. The reason for distinguishing among the case where harm difficult to recover from and urgency are demonstrated and the necessary scope of the stay and the public interest restriction are both satisfied; the case where urgent irreparable harm is not recognized or where there is a risk that the stay will have a serious impact on the public interest; and the case where there are no materials by which to determine the recoverability of the harm or the external effect of the stay is that the requirements to be assessed differ from one another.
The strongest counterargument is directed at the risk that an abstract public-interest rationale may override individual relief. If a stay is restricted on grounds of the public interest, the discomfort that the party's irrecoverable harm is left unaddressed is not erased. The author's answer, however, is that the mere designation as the public interest cannot be recorded as having proven the risk of serious impact. The harm the counterargument points out is retained as material for the assessment, but is not treated as satisfying the condition for refusal merely by virtue of its name.
In the synthetic scene, the only material for the present assessment is Applicant A's concern that restoration of the state prior to the judgment on the merits will become difficult. Whether there are further materials by which to assess the nature and urgency of the urgent irreparable harm, and the external effect the stay will have on the public interest, is undetermined. Accordingly, this section divides the matter only within the conditions specifying which of the case where it operates, the case where it is blocked, and the case where it is undetermined is at issue, and does not itself determine the recoverability of the harm or the external effect.
All that this section permits as a conclusion is that the division be confined to the conditions specifying the detailed distinctions within the stage—the case where it operates, the case where it is blocked, and the case where it is undetermined—and that no further step be added. What decision was rendered, what effect ensued, or whether actual restoration took place is not the answer to this question.
4.11Synthesis of Effectiveness, Blockage, and Undetermination
The subsidiarity—that if the purpose can be achieved by staying execution or the continuation of procedure, a stay of effect is not permitted—limits the preceding assessment. In this scene where harm difficult to recover from and urgency stand together, how are the conditions under which a stay of an administrative action before judgment actually opens, the conditions under which it is blocked, and the case where it remains undetermined for want of materials distinguished?
The provision states that "a stay of execution shall not be permitted where there is a risk of serious impact on the public interest" (Administrative Litigation Act, Article 23). The subject this provision designates is the court deciding the stay; the conduct is the stay of the effect of the disposition; and the condition is whether the impact the stay will have on the public interest has reached the stage of a serious concern. This paragraph addresses only that condition for refusal and does not newly prescribe the remainder of the requirements for a stay.
What Article 23, paragraph (3) takes as the condition for refusal is not harm difficult to recover from, but the risk of the serious impact the stay will leave upon society as a whole. Since the two assessments differ in the object they target and in the materials to check, they cannot be lumped into a single bundle. On the harm side, the scheduled disposition and enforcement and the nature and urgency of the harm are the materials for assessment; on the impact side, the public interest materials serve that role. So long as this distinction is maintained, the conditions under which a stay opens are that harm difficult to recover from and urgency are demonstrated and that the necessary scope of the stay and the public interest restriction are both satisfied; the conditions under which it is blocked are divided into the case where urgent irreparable harm is not recognized and the case where there is a risk that the stay will have a serious impact on the public interest. Meanwhile, if the purpose can be achieved by a stay of execution or of procedure alone, the option of staying the effect itself narrows.
If a stay is restricted on grounds of the public interest, the party's irrecoverable harm is left unaddressed, and that harm is difficult to reverse even if the party prevails on the merits; this is the heart of the matter. It is so because one would be asked to bear an actually existing harm in the position of warding off a fictitious harm. The conclusion nonetheless stands: what Article 23, paragraph (3) requires is not a name but the basis for the concern, and if that basis has not been confirmed, the condition for refusal remains unmet. The risk of non-addressal that the counterargument points out is rather covered over not by lowering this threshold but by maintaining it.
Among the facts of the synthetic scene, those belonging to this question are only A's concern about the difficulty of restoration and the progress of the disposition's enforcement. Whether the nature and urgency of the harm are demonstrated to what degree by this concern, and whether the records contain materials supporting the risk of serious impact the stay will have on the public interest, are undetermined. The kinds expected of the assessment records are the scheduled disposition and enforcement, the nature and urgency of the harm, the public interest materials, and the stay order. Accordingly, if the public interest materials are empty, this scene alone cannot determine whether the condition for refusal is satisfied. That phase is undetermined for want of materials, and a lack of materials is not immediately an absence of relief.
What this section permits is the separation of three cases. If harm difficult to recover from and urgency are demonstrated and both the necessary scope of the stay and the public interest restriction are satisfied, the stay opens; if urgent irreparable harm is not recognized or a risk that the stay will have a serious impact on the public interest is confirmed, it is blocked. If there are no materials by which to determine the recoverability of the harm or the external effect of the stay, it remains undetermined. No conclusion outside this boundary is permitted. It cannot be said that a stay always opens merely because of an individual's urgent harm, nor that a stay is blocked merely under the name of the public interest. An assessment that goes so far as actual payment, delivery, or the outcome of a meeting likewise falls outside this scope.
4.12Conclusion Carried Over to the Next Section
The conclusion up to the preceding step receives only one sentence: that the object of a stay is not always bound to the effect itself, and is limited by the subsidiarity that if the purpose can be achieved by staying execution or the continuation of procedure, a stay of effect is not permitted. Taking this conclusion as the premise, the question addressed at this step is whether a stay is granted whenever there is an individual's urgent harm.
The statutory text corresponding to this question is as follows: "③ A stay of execution shall not be permitted where there is a risk of serious impact on the public interest." (Administrative Litigation Act, Article 23) Around the subject and the conduct that determine whether a stay is granted or denied, this provision signifies a condition that must be examined separately, namely whether the impact on the public interest is likely to be serious. The public interest restriction is here the term designating the statutory condition for refusal concerning the social impact of the stay, and this provision in this paragraph addresses only this limited question.
This provision and the subsidiarity received earlier assume different stages of assessment. The former sets the order of narrowing and selecting the means of the stay; the latter leaves in the same assessment the condition of social impact that blocks the stay itself. Accordingly, even if an individual's harm difficult to recover from and urgency are demonstrated and the necessary scope of the stay is fixed, where that stay carries a risk of serious impact on the public interest, its permissibility may be blocked before the choice between a stay of effect and a stay of execution. Conversely, if in light of subsidiarity the purpose can be achieved by a narrow stay alone in place of a stay of effect, there is no need to insist on the broader stay.
In blocking a stay, there is a risk that an abstract public-interest rationale will override individual relief. In that the disadvantage remains in place—that if a stay is restricted on grounds of the public interest, the party's irrecoverable harm is left unaddressed—this counterargument is aimed at the urgent loss of not wanting to render A's concern vain. What the statutory text requires is an assessment as to the degree of the concern, not treating the condition as satisfied merely by an assertion bearing the name of the public interest.
The facts confirmed in the synthetic scene are only A's filing of the lawsuit and the progress of enforcement, together with the concern about the difficulty of restoring the state prior to the judgment on the merits. This concern serves as the starting point for gauging the necessary scope and urgency of the stay, but no materials for assessing the external effect the stay will have on the public interest are prepared within the scene. Whether such materials will be assembled remains undetermined; all that is set is the place where the records concerning the recoverability of the harm and the social impact of the stay—the scheduled disposition and enforcement, the nature and urgency of the harm, the public interest materials, and the stay order—are to be reviewed together. It is not concluded that a stay is forthwith impermissible merely by reason of the absence of materials.
What is permitted in this section is the conclusion that, within the assessment of a stay on account of an individual's urgent harm, the condition for refusal—namely the risk of serious impact on the public interest—is to be placed alongside it. What is impermissible is to treat that risk as already proven merely by the designation as the public interest, and to regard a stay as necessarily following merely because there is urgent harm. Within this boundary, the public interest restriction remains the statutory condition for refusal concerning the social impact of the stay. If one applies for a stay or files an appeal against a ruling, what stops?