Summary
This chapter distinguishes prima facie proof of the grounds for the application from the non-suspensive effect of an immediate appeal against a stay decision.
5.1The Standard by Which the Path Opens
The mere fact that the dispute continues does not change the operation of the present decision. Applicant A has filed an action for revocation, but fears that enforcement of the disposition will proceed and that restoration of the state of affairs prior to the judgment on the merits will become difficult. This fear is the starting point for applying for a stay of execution, but the mere fact that an application has been filed does not halt enforcement of the disposition. As confirmed earlier, the ground for denial that there is a fear of a serious effect on the public interest must likewise be left to the same determination; what, then, are the conditions under which this remedy operates? What is being asked here is not the procedural act of filing an application or taking an appeal against a ruling in itself, but what state of affairs comes to a halt when the requirements prescribed by law are satisfied. Understanding an appeal against a stay order as an immediate appeal against a ruling procedure premised on statutory effects also begins with this distinction.
A person seeking a stay, as in the case of Applicant A, must first set out the reasons for it. On this point, Article 23 (4) of the Administrative Litigation Act provides, "An application for a decision to stay execution under paragraph (2) shall be accompanied by a prima facie showing of the grounds therefor." Here, a prima facie showing refers not to the formal submission of an application, but to supporting the reasons for the application, such as irreparable harm and urgency, with evidentiary materials, and its object is the application seeking a stay order. The statutory text in this paragraph provides only for the requirement of a prima facie showing; it does not provide that a stay follows as soon as such a showing is made, nor does it separately classify the degree of the showing. Accordingly, this paragraph shows only what conditions an application requires, and does not directly determine what comes to a halt by the mere filing of an application.
The requirement of a prima facie showing of the grounds is the threshold at the application stage, and whether that threshold has been crossed is a determination separate from the question of the range within which the effects of a stay order operate. Where irreparable harm and urgency are shown, and the necessary scope of the stay and the public interest limitation are satisfied, this remedy operates; this means that the effect of a stay arises when an application for which a prima facie showing has been made also satisfies the requirements prescribed by law. Conversely, a prima facie showing of the grounds for the application merely satisfies the requirements of the application stage and cannot substitute for the remaining determinations of the scope of the stay and the public interest limitation. If a prima facie showing is the gateway to the application, the operation of the effect is the result of satisfying the requirements, and unless these two stages are kept apart, the initiation of the application procedure and the substance of the stay become conflated. The author draws this distinction to make clear under what conditions this remedy operates.
Meanwhile, what the counterargument that the effects of an erroneous stay order may continue during an appeal against a ruling most strongly targets is the loss and inconvenience that a stay which has not become final inflicts on the opposing party. If the state of that decision is maintained while the appeal against a ruling taken to correct the error continues after the stay has been issued, the opposing party must wait with enforcement suspended throughout that period. Nevertheless, the filing of an appeal against a stay order cannot be converted into a suspension of the effect of that decision. This answer does not erase the adverse aspects of an erroneous stay, but maintains the boundary that the procedure of an appeal against a ruling cannot be regarded as suspending from the outset the effect of a stay order already issued. The phenomenon of that decision remaining in effect during the appeal may be a matter to be dealt with separately, but the choice of treating the filing of the appeal itself as the ground for suspension of the effect is not permitted.
What can be confirmed in the synthetic scene is only the fact that Applicant A fears that, while enforcement of the disposition proceeds, restoration of the state of affairs prior to the judgment on the merits will become difficult; whether this fear amounts to irreparable harm and urgency must be determined together with the disposition, the scheduled enforcement, the nature of the harm, urgency, the public interest materials, and the type of stay decision that will be entered in the record. Since the scene fixes no year, amount, commencement date, or judgment outcome, in the intervals where there are no materials by which to assess the recoverability of the harm or the external effect of the stay, the matter remains undetermined. Conversely, if the condition is applied that choosing suspension of the effect itself is narrowed where the purpose can be achieved merely by suspending enforcement or the procedure, only the determination of the necessary scope of the stay may change, and the scene itself does not fix that determination.
The conclusion this section permits is this: it places an appeal against a ruling from a stay order as an immediate appeal against a ruling procedure premised on statutory effects; after separating the requirement of a prima facie showing of the grounds for the application from the operation of the effect of the stay, it arrives at the determination that this remedy operates where irreparable harm and urgency are shown, and the necessary scope of the stay and the public interest limitation are satisfied. By contrast, this section does not permit the conclusion that a stay follows from the mere procedural fact that an application was filed or an appeal against a ruling was taken, nor the conclusion that the filing of an appeal against a ruling converts into a suspension of the effect of the stay order. The confirmed text of the provisions distinguishes only the requirement of a prima facie showing and the non-suspending effect of an immediate appeal against a ruling, and does not itself determine any other requirements or facts.
5.2The Conditions That Block Relief
The preceding section found that this remedy operates where irreparable harm and urgency are shown, and the necessary scope of the stay and the public interest limitation are satisfied. It is now time to examine the conditions under which that remedy is barred. Whether any procedure automatically halts merely because A filed an application or lodged an objection to the decision connects directly to the question addressed here.
The text of the relevant provisions sets out separately the requirements of the application stage and the effect of the review procedure. First, Article 23 (4) provides that when an application for a decision to stay execution is filed, a prima facie showing of the grounds therefor shall be made (Administrative Litigation Act, Article 23). The actor required by this text is the party applying for the stay, the act is the application, and the condition is the prima facie showing of the grounds for the application. Paragraph (5) of the same Article provides that an immediate appeal against a ruling may be taken from a stay order and from a decision of dismissal, and adds that an immediate appeal against a ruling from a stay order has no effect of staying the execution of the decision (Administrative Litigation Act, Article 23).
The above two texts separate different stages of determination, and that distinction supports the present conclusion. If the prima facie showing is insufficient, urgent irreparable harm is not supported, and the application itself is barred. Meanwhile, the condition that this remedy is also barred where there is a fear that the stay will seriously affect the public interest remains as in the preceding determination. In other words, the requirement of a prima facie showing in paragraph (4), which addresses the requirements of the application and decision stage, and the non-suspension rule of paragraph (5), which determines what effect an objection to a decision already rendered has, are on different levels. If these two are mixed together, the reason for understanding an appeal against a stay order as an immediate appeal against a ruling procedure premised on statutory effects is lost.
The strongest counterargument targets the fact that the effects of an erroneous stay order continue even during an appeal against a ruling. The counterargument runs as follows: if, when a stay order is judged to be erroneous, the stay under that decision is maintained until it is corrected through an appeal against a ruling, an erroneous remedy will, in the end, persist for a considerable period. It is further pointed out that if the stay is restricted on grounds of the public interest, the party's irreparable harm is left unaddressed. Nevertheless, the answer that the filing of an appeal against a ruling from a stay order cannot be converted into a suspension of the effect of that decision is maintained. The disadvantage that this answer does not erase—namely, the fact that the stay order continues to operate even during the appeal against a ruling—plainly remains.
In the synthetic scene, the fact belonging to this question is that A filed an action and fears that enforcement of the disposition will proceed. In this situation, the prima facie showing of the grounds for the application varies with how far A demonstrates irreparable harm and urgency. By contrast, the fact that an immediate appeal against a ruling from a stay order was filed does not by itself stay the execution of the stay-of-execution decision. However, since the scene designates no materials as to whether A's harm is in fact irreparable in nature, or as to the degree of the impact the stay will have on the public interest, those items cannot be determined in this section. Where the purpose can be achieved merely by suspending enforcement or the procedure, the choice of suspending the effect itself is narrowed.
The conclusion permitted in this section is narrow. Where urgent irreparable harm is not recognized, or where there is a fear that the stay will seriously affect the public interest, this remedy is barred, and the stay order does not stop merely because an appeal against a ruling has been taken. Conclusions that are not permitted are treating the mere pendency of an appeal against a ruling as suspending the effect of that decision and, conversely, asserting categorically that there is no review procedure at all.
5.3The Boundary That Remains When There Is No Data
The preceding section found that this remedy is barred where urgent irreparable harm is not recognized, or where there is a fear that the stay will seriously affect the public interest. But how should matters be handled where the materials for assessment are themselves lacking, so that neither that fear nor that harm can be read out of them? Is the place where the grounds for gauging recoverability and the external effect of the stay are empty the same place as that where the conditions are unsatisfied?
To answer this question, the text of the relevant provision must first be laid down. Article 23 (4) of the Administrative Litigation Act states, "a prima facie showing of the grounds therefor shall be made" (Administrative Litigation Act, Article 23). This text requires the party applying for a decision to stay execution to make a prima facie showing of the grounds, and the object toward which the showing must go is the reasons for the application, such as irreparable harm or urgency. Accordingly, a prima facie showing is a condition to be satisfied at the application stage, and the determination of whether this condition has been satisfied cannot be placed on the same footing as the place of a gap in materials where no such determination can be reached.
Meanwhile, Article 23 (5) provides that "an immediate appeal against a ruling from a decision to stay execution shall have no effect of staying the execution of the decision" (Administrative Litigation Act, Article 23). An immediate appeal against a ruling is the procedure by which an objection to a stay order is subjected to statutory effects, and even after that procedure has been commenced, the stay order itself continues to operate. Here, the absence of a prima facie showing and the non-suspending effect of an immediate appeal against a ruling are placed at different stages. The former is the condition that materials supporting the grounds must be present when the application is filed; the latter is the effect that the procedure contesting a stay order already issued does not cause that decision to halt. Where there are no materials by which to assess the recoverability of the harm or the external effect of the stay and no determination can be made, the determination is left undetermined, and this is distinguished from a case in which the remedy is barred.
The strongest counterargument targets the actual loss of the opposing party. Because the effects of an erroneous stay order may continue during an appeal against a ruling, if the determination is left undetermined on the ground that no materials exist, irreparable harm will be left wholly unaddressed until the review of the appeal against a ruling concludes. Nor can one overlook the point that if the stay is narrowed in the name of the public interest, the very restoration of the state of affairs that A fears becomes difficult. Without that point, the force of the counterargument diminishes, but the inconvenience it identifies does not thereby disappear. For no statutory effect arises, by the mere fact that a contesting procedure has been opened, that would stop the operation of the present decision.
Laying the matter out this way and looking again at the synthetic scene, what A fears is the possibility that enforcement of the disposition will proceed and that restoration of the state of affairs prior to the judgment on the merits will become difficult. The scene merely describes a fear regarding the nature of the harm and urgency; it does not determine whether materials that confirm or refute that fear are already at hand. The materials for gauging the impact on the public interest are likewise empty. Hence, on this scene alone, it cannot be determined whether irreparable harm has been shown, or whether there is a fear that the stay will seriously affect the public interest. The remaining place is not a place where the conditions are unsatisfied, but remains a place where the determination is deferred for want of materials.
In summary, the conclusion this section permits extends only to the determination that leaves the state of want of materials undetermined; it does not permit the determination that converts insufficient materials at once into an absence of remedy, nor the determination that the filing of an appeal against a ruling suspends the stay order.
5.4The Records Needed for Determination
What comes to a halt when one applies for a stay or takes an appeal against a ruling? As confirmed earlier, the ground for denial that there is a fear of a serious effect on the public interest must likewise be left to the same determination. In such a situation, which records are needed?
Article 23 (4) of the Administrative Litigation Act provides, "An application for a decision to stay execution under paragraph (2) shall be accompanied by a prima facie showing of the grounds therefor" (Administrative Litigation Act, Article 23). This text requires the party applying for a decision to stay execution to be equipped with a prima facie showing of the grounds. A prima facie showing means the act of presenting the grounds offered by the applicant even lightly, to a degree short of reaching the judge's conviction, and it is the condition securing that the court examining the application obtains the materials by which to examine the reasons for that application. Only the limited issue of the prima facie showing of the grounds for the application is addressed here.
The prima facie showing requirement of Article 23 (4) is connected with the examination record corresponding to that requirement. What the applicant shows is submitted as materials regarding the content of the disposition, the scheduled enforcement, the nature of the harm, urgency, and the impact on the public interest, and on that basis the court organizes the materials recorded in the stay order. The prima facie showing of the grounds for the application and the non-suspending effect of an immediate appeal against a stay order are separate stages of determination. Stage determinations are made only on the established records. Missing records are not filled in by conjecture.
The strongest counterargument in this section is that the effects of an erroneous stay order may continue during an appeal against a ruling. There follows the concern that if the stay is restricted on grounds of the public interest, the party's irreparable harm may be left unaddressed. Even so, however, the filing of an appeal against a ruling from a stay order cannot be converted into a suspension of the effect of that decision. Article 23 (5) provides, "An immediate appeal against a ruling may be taken from a decision to stay execution under paragraph (2) or a decision of dismissal. In this case, an immediate appeal against a ruling from a decision to stay execution shall have no effect of staying the execution of the decision" (Administrative Litigation Act, Article 23). The text confirms that the operation of the present decision does not change merely by the fact that the procedure of an immediate appeal against a ruling is being conducted.
The scene presents a situation in which the requirements of the grounds for a stay—namely, the nature of the harm and urgency—may be raised. What is needed here, however, is the materials submitted when applying for a stay order for the purpose of preventing that harm, and the materials recorded in the stay order rendered on the basis of those materials. The records needed for the determination are the disposition, the scheduled enforcement, the nature of the harm, urgency, the public interest materials, and the stay decision. Where there are no materials by which to assess the recoverability of the harm or the external effect of the stay, those matters remain undetermined.
The conclusion this section permits is to distinguish the prima facie showing of the grounds for the application from the non-suspending effect of an immediate appeal against a ruling from a stay order, and to determine the stage on the established records alone. Even if an immediate appeal against a ruling has been filed, the effect of the stay order itself continues to operate, and its operation while awaiting the outcome of the appeal against a ruling belongs to the effects prescribed by law. Conversely, it is not permitted to conjecture facts or materials not in the records so as to raise or lower the stage. Here, an appeal against a ruling from a stay order means an immediate appeal against a ruling procedure premised on statutory effects.
5.5Circumstances That Change the Decision
The preceding section proceeds from the premise that this ruling is grounded in the disposition, scheduled execution, nature of the harm, urgency, public-welfare materials, and the stay decision, and that without that record it remains undetermined. On this premise, a question remains: if one applies for a stay or files an appeal against a ruling, what stops? By distinguishing the prima facie showing of the grounds for the application from the non-staying effect of an immediate appeal against a ruling on a stay order, this section clarifies which procedural act stops what.
The source text corresponding to this question is Article 23, paragraphs (4) and (5) of the Administrative Litigation Act. This wording requires the party applying for a decision to stay execution to attach a prima facie showing as to the grounds, and its object is the grounds for the application. Paragraph (5) permits an immediate appeal against a ruling both on a decision to stay execution and on a decision of dismissal, and after drawing the line that "an immediate appeal against a ruling on a decision to stay execution has no effect of staying the execution of the decision" (Administrative Litigation Act, Article 23), it makes clear that the appeal against a ruling itself does not stay the execution of the decision.
The prima facie showing under paragraph (4) is an application-stage requirement that opens the door to a stay application, whereas the non-staying effect in the latter part of paragraph (5) limits the operation of the challenge procedure against a stay order already issued. The former requires the applicant to make a prima facie showing of the grounds, thereby assembling the materials for examination; the latter ensures that the immediate appeal procedure, predicated on a statutory effect, never stays the execution of that decision. The reason the two must be distinguished is that whether a showing is made governs the validity and operation of the decision, whereas the filing of an immediate appeal, unlike the former, leaves the state in which the stay order currently operates as it is.
Yet the fact that the effect of an erroneous stay order may continue during the appeal against a ruling is a cost that does not disappear. If, although the stay order should never have been issued, the execution of the disposition under challenge or the related procedure remains stayed until the appeal against a ruling is decided, the detriment of the erroneous judgment persists as it stands. This is because one cannot reverse the allocation made by Article 23, paragraph (5), which provides that the filing of the appeal does not stay the execution of the decision, so as to make the decision cease operating merely upon the commencement of the appeal-against-a-ruling proceeding. An appeal against a ruling is a channel that leads to a re-examination of the grounds for the stay, not a matter that stays the operation of the decision of its own accord.
In the synthetic scene, A has already filed an action for revocation, and the concern is that if the execution of the disposition proceeds, restoration of the state of affairs before the judgment on the merits will become difficult. This concern falls within the stay requirements of harm that is difficult to remedy and urgency, which must be substantiated by a prima facie showing, and the necessary scope of the stay and the public-welfare limitation must be satisfied as well. Conversely, if irreparable harm requiring urgent relief is not recognized, or if the stay is likely to have a serious impact on the public interest, the stay is not opened. Yet this scene alone supplies no material for judging the recoverability of the harm or the external effect of the stay. These items remain undetermined and do not immediately convert into grounds for the unavailability of relief.
What this section permits is a judgment that separates the two stages of the prima facie showing of the grounds for the application and the non-staying effect of an immediate appeal against a ruling; it does not permit the view that the operation of the stay order ceases merely because an immediate appeal against a ruling has been filed. Since the showing required by Article 23, paragraph (4) is the condition that opens the stay application, that requirement is not replaced by the effect of the appeal. Conversely, if the purpose can be achieved merely by staying execution or the procedure, the need to suspend the effect of the disposition itself diminishes; this only narrows the option of suspending the effect itself and does not negate the stay as such.
5.6The Strongest Counterargument and the Answer
In this scene, disputes may continue even after a stay order has been issued, and the mere fact that such disputes continue does not change the operation of the decision currently in force. The prima facie showing of the grounds for the application and the non-staying effect of an immediate appeal against a ruling on a stay order must be distinguished. Then what becomes of the effect when a challenge to a stay order is raised?
The wording corresponding to this question is divided into two paragraphs. It is wording that presupposes the applicant's duty to make a prima facie showing of the grounds at the application stage. The party who may file an immediate appeal against a ruling is a person who contests the decision, and its object is the stay order or the decision of dismissal.
The latter sentence of paragraph (5) limits the effect of an immediate appeal against a ruling. Since the commencement of the challenge procedure does not suspend the operation of the original decision, the effect of staying the execution of that decision is likewise not conferred. The reason these two levels of judgment must be distinguished is that the showing requirement in the preceding wording concerns the requirements for the admissibility and favorability of the application, whereas the non-staying effect in the later wording concerns an incidental effect of the challenge procedure. The author's application is determined according to the meaning of this wording.
Nevertheless, the fact that the effect of an erroneous stay order may persist during the period of the appeal against a ruling cannot be left out. The counterargument that the burden may be shifted entirely onto the applicant's side targets substantive losses. If the state in which the execution of the disposition is halted by an erroneous stay is prolonged, harm that is difficult to remedy accumulates, and for the opposing party seeking correction the delay itself becomes a cost. Such inconvenience is real. Even so, converting the filing of the appeal against a ruling into a suspension of effect is an interpretation that exceeds the boundary set by the wording. The conclusion does not waver. Only what options remain during that period is left to be determined separately.
Viewed in light of the synthetic scene, applicant A is concerned that if the execution of the disposition proceeds, restoration of the state of affairs before the judgment on the merits will become difficult. This concern is the starting point of the stay requirements of harm that is difficult to remedy and urgency, which must be substantiated by a prima facie showing, and it is the place where the showing requirement of Article 23, paragraph (4) of the Administrative Litigation Act operates (Administrative Litigation Act, Article 23). Conversely, the ground for refusal framed as a likely serious impact on the public interest likewise remains within the same judgment. On the record, one can confirm only the disposition, the scheduled execution, the nature of the harm, the urgency, the public-welfare materials, and whether a stay decision exists. If the purpose can be achieved merely by staying execution or the procedure, the option of suspending the effect itself narrows. However, if there is no material for judging the recoverability of the harm or the external effect of the stay, this item remains undetermined.
The conclusion permitted by this section is narrow. It is that even if a challenge to a stay order has been raised, the filing of that challenge alone does not change the operation of the existing decision, and that the prima facie showing of the grounds for the application and the non-staying effect are judged separately. The conclusion not permitted is the interpretation that, because there is an appeal against a ruling, the effect is automatically suspended. The fact that, while material is insufficient, recoverability or the impact on the public interest cannot be determined does not convert into unavailability of relief either.
5.7The Link to the Application and the Dispositive Part
A applies for a stay of a pre-judgment administrative act before the judgment on the merits, and the party dissatisfied with that decision files an immediate appeal against a ruling. The preceding section confirmed that the filing of an appeal against a ruling on a stay order cannot be converted into a suspension of the effect of that decision.
Article 23 of the Administrative Litigation Act places different wording on the stage of applying for a decision to stay execution and on the stage of contesting that decision. First, Article 23, paragraph (4) provides: "In applying for a decision to stay execution under paragraph (2), there must be a prima facie showing of the grounds therefor" (Administrative Litigation Act, Article 23). The subject of this wording is the person applying for a decision to stay execution, the act is that application, and the condition is a prima facie showing of the grounds for the application. The showing is a requirement demanded at the application stage, not a criterion that governs the effect of a subsequent challenge procedure.
Next, Article 23, paragraph (5) provides that an immediate appeal against a ruling may be taken against a decision to stay execution or a decision of dismissal, and that "an immediate appeal against a ruling on a decision to stay execution has no effect of staying the execution of the decision" (Administrative Litigation Act, Article 23). An immediate appeal against a ruling is a procedure contesting a stay order, that is, a procedure predicated on a statutory effect, and the commencement of that procedure does not stop the operation of the stay order. This is why the prima facie showing of the grounds for the application and the non-staying effect of an immediate appeal against a ruling on a stay order must be distinguished. The former deals with the conditions for admitting the application; the latter deals with the effect that the challenge procedure against a decision already rendered has upon the decision itself.
If the stay order is erroneous, it is difficult to deny that its effect may continue during the appeal against a ruling. The detriment suffered by the opposing party owing to an erroneous stay and the impact on the public interest are not cured merely because the appeal is pending. Reading the procedural fact of filing as an effect that stops the force of the decision is to reverse the non-staying effect set by the wording, and the losses pointed out by the counterargument remain a matter to be dealt with by separate judgment.
In the synthetic scene, A, apprehending that if the execution of the disposition proceeds, restoration of the state of affairs before the judgment on the merits will become difficult, applies for a stay. Whether such apprehension leads to a prima facie showing of harm that is difficult to remedy and urgency, and whether it also satisfies the necessary scope of the stay and the public-welfare limitation, is a matter to be judged on the record of the disposition, the scheduled execution, the nature of the harm, the urgency, the public-welfare materials, and the stay decision. However, where there is no material for judging the recoverability of the harm or the external effect of the stay, which way A's application leans cannot be determined from this scene alone.
When one applies for a stay, a prima facie showing of the grounds for the application is required, and even if one files an immediate appeal against a ruling on a stay order, no effect of staying the execution of that decision arises. One cannot say that the stay order stops merely because an immediate appeal against a ruling has been filed; conversely, neither can one say that the decision continues to operate unchanged to the very end merely because a stay order has been issued.
5.8The Scope This Section Undertakes
The core ruling, the distinction between the acceptance of an appeal against a ruling on a stay order and the suspension of the effect of that decision, must be preserved, and the structure that distinguishes the prima facie showing of the grounds for the application (Article 23, paragraph (4)) from the non-staying effect of an immediate appeal against a ruling (Article 23, paragraph (5)) stage by stage must also be maintained. Without filling undetermined matters with certainties, while satisfying scene-and-condition comparison and boundary description, the six paragraphs can be filled in.
The ground for refusal framed as a likely serious impact on the public interest must also be left within the same judgment. Taking that conclusion, what must now be asked is what the initiation of a procedure such as an application or an appeal against a ruling immediately stops, and which of those procedures stops the operation of what. Therefore, the commencement of a procedure and the arising of a statutory effect must be examined as separate stages.
At the stage of applying for a stay, the statute provides that "there must be a prima facie showing of the grounds therefor" (Administrative Litigation Act, Article 23). This wording refers to the condition that the applicant must make a prima facie showing of grounds for the application such as harm that is difficult to remedy and urgency, and it does not contain the meaning that the effect of a stay arises merely upon submission of the application. The showing is a procedural condition that examines whether the grounds have been substantiated before deciding whether to grant the application. The showing addressed here is limited to the scene of applying for a decision to stay execution under paragraph (2), and what decision is rendered after the application remains a separate stage.
Meanwhile, where a decision has been rendered and is then contested, a different statutory effect follows. A challenge to a stay order means an immediate appeal against a ruling predicated on a statutory effect, and here an immediate appeal against a ruling is not the same thing as a suspension of effect. The wording that "an immediate appeal against a ruling on a decision to stay execution has no effect of staying the execution of the decision" (Administrative Litigation Act, Article 23) provides that the operation of the stay order does not stop merely because a motion contesting it has been filed. Accordingly, the showing requirement deals with the initial stage of the application, while the non-staying effect of an immediate appeal against a ruling deals with the continued operation of a decision already rendered, and the two are distinguished accordingly.
The strongest counterargument is in fact aimed here: the fact that the effect of an erroneous stay order may persist during the appeal against a ruling. Where the applicant is already apprehending harm that is difficult to remedy, if the original decision continues to operate until the appeal-against-a-ruling procedure concludes even though it was wrong, the harm may deepen. Even taking that loss and inconvenience into account, the acceptance of an appeal against a ruling on a stay order cannot be converted into a suspension of the effect of that decision. For an appeal against a ruling is a challenge procedure directed at a statutory effect already established, and if one interprets it so that the acceptance alone reverses the operation of the effect, the legal effect of the stay order itself would be unsettled.
The facts ascertainable in the synthetic scene are that the execution of the disposition is ongoing and that the applicant is apprehensive about restoring the state of affairs before the judgment on the merits. This fact stands in contrast to the nature of harm that is difficult to remedy spoken of in the prima facie showing of the grounds for the application, but no material is presented for judging urgency and the impact on the public interest. Accordingly, the parts where grounds for adjudging the recoverability of the harm or the external effect of the stay are lacking remain undetermined. The comparison condition that if the purpose can be achieved merely by staying execution or the procedure, the option of suspending the effect itself narrows, likewise has had its satisfaction left undecided on this scene alone.
The conclusion permitted by this section is to understand the operation of a stay order by distinguishing the showing requirement at the application stage from the non-staying effect at the challenge stage; what is not permitted is to interpret the acceptance of the appeal against a ruling itself as a suspension of effect. This distinction holds when a challenge to a stay order is understood as an immediate appeal against a ruling predicated on a statutory effect. Whether the showing has not been satisfied, whether irreparable harm requiring urgent relief is not recognized, or whether there is a concern that the stay will seriously affect the public interest, each remains a condition for further judgment. Nor does it mean that relief is automatically barred merely because there is unverified material.
5.9Application of the Text of the Provisions and the Holdings of Precedents
Now, how does that source text apply to the stay of administrative action prior to judgment? Together with this concern, this question lies in clarifying what the requirement language at the application stage and the effect language of the remedy procedure each govern. Of the several paragraphs within the same Article, the ones taken up here are only paragraphs (4) and (5).
Among the relevant source text, Article 23, paragraph (4) of the Administrative Litigation Act reads: "In applying for a decision to stay execution under the provisions of paragraph (2), there shall be a prima facie showing of the reasons therefor." This language confines the subject and the act of the application to "applying for a decision to stay execution under the provisions of paragraph (2)," and requires for that application "a prima facie showing of the reasons therefor." Here a prima facie showing means that the applicant himself produces materials supporting the reasons for the application; it is a condition at the application stage that determines whether the court permits the stay of administrative action prior to judgment. The same paragraph cannot be read as governing other procedures or the effects of a remedy as well.
The prima facie showing required by paragraph (4) and the conclusion connected by its language are as follows. Only when the applicant makes a prima facie showing of irreparable harm and urgency, sets out the necessary scope of the stay, and gets past the ground for refusal, namely the risk of a serious effect on the public interest, can a stay order finally issue. The reason for separating the stage of the prima facie showing from the stage of the remedy procedure is that they regulate different objects. Paragraph (4) asks whether the application has its reasons, while a remedy deals with the statutory effects of the decision already rendered. If these two stages are mixed, one loses sight of the fact that satisfaction of the requirements for the application and the effect of an appeal against a ruling from the decision are distinct questions.
When a stay order is contested, there remains the loss that, if the decision was wrong, its effect continues even during the appeal against a ruling. The effect of an erroneous stay order may persist while the appeal against a ruling is pending. For Applicant A the inconvenience is great, since the enforcement of the disposition proceeds and it becomes difficult to restore the state of affairs prior to the judgment on the merits; conversely, the loss to the public interest caused by an erroneous stay is also not light. Yet so long as that language does not convert the effect of an appeal against a ruling into a stay, one cannot regard the operation of the decision as ceasing merely upon the receipt of the appeal against a ruling.
The facts confirmed in the synthetic scene are that Applicant A filed an action for revocation and that he is concerned that the enforcement of the disposition will proceed and that it will become difficult to restore the state of affairs prior to the judgment on the merits. This fact is the starting point for gauging whether the objects of the prima facie showing required by paragraph (4), namely irreparable harm and urgency, can be established in light of Applicant A's circumstances. The scene, however, contains no materials for judging the recoverability of the harm or the external effect of the stay upon the public interest. Those two items remain undetermined. If it were confirmed that the purpose can be achieved merely by staying enforcement or procedure, the option of suspending the effect itself would narrow, but on this scene alone its satisfaction cannot be fixed.
The conclusion this section permits is to distinguish the prima facie showing of the reasons for the application from the non-staying effect of an immediate appeal against a ruling from a stay order, and, within that distinction, to take the relevant language alone as the ground of decision. Here, a contest of the stay order means an immediate appeal against a ruling procedure premised on statutory effects, and one cannot extend it so that the receipt of that procedure suspends the effect of the decision. What this section does not permit is to draw in the reasons for the judgment or other paragraphs from outside the language of paragraphs (4) and (5) in order to produce new requirements or legal effects.
5.10Fine Distinctions Within the Stage
The preceding section addressed what stops when one applies for a stay or lodges an appeal against a ruling; the question continuing here is what part must be separately adjudicated within the stay of administrative action prior to judgment. Even after a stay order is issued or its application is dismissed, a conflict of interests remains, and the remaining conflict calls for a judgment as to which side should be followed.
To this question the relevant source text supplies two paragraphs. Article 23, paragraph (4) of the Administrative Litigation Act provides that "In applying for a decision to stay execution under the provisions of paragraph (2), there shall be a prima facie showing of the reasons therefor" (Administrative Litigation Act, Article 23). Paragraph (5) of the same Article fixes both the object and the effect of an immediate appeal against a ruling, stating that "In this case, an immediate appeal against a decision to stay execution shall have no effect of staying the execution of the decision" (Administrative Litigation Act, Article 23). Here, "a prima facie showing of the reasons therefor" refers to the act of the applicant presenting, as substantiating materials, the reasons for the application such as irreparable harm and urgency, and the object of the application is the decision to stay execution.
The substantiation of those reasons is a condition at the application stage for obtaining a stay order, while the non-staying effect of an immediate appeal against a ruling is a condition of the remedy procedure against a stay order already issued. The two must be distinguished because the stage that prompts the application and the stage that contests its result each embody judgments concerning different subjects and acts. Within the same language, the former is a requirement as to the reasons for the application and the latter is a declaration as to the incidental effects of the remedy, and the detailed distinctions within the stay of administrative action prior to judgment are limited to these two express conditions. Where irreparable harm and urgency are substantiated and the necessary scope of the stay and the public-interest limitation are met, the operating conditions are established; where urgent irreparable harm is not recognized, or where there is a risk that the stay would have a serious effect on the public interest, its operation is barred.
The strongest counterargument takes aim at the point that the effect of an erroneous stay order may persist during the appeal against a ruling. It says that the stay order may itself produce irreparable harm, and that while the appeal against a ruling contesting that decision continues, the execution of the disposition already stayed remains halted and the losses of the interested parties may accumulate. Added to this is the concern that if a stay is restricted on grounds of the public interest, the party's irreparable harm is left unremedied. Since the language of paragraph (5) fixes that an immediate appeal against a ruling against a decision to stay execution has no effect of staying the execution of the decision, one cannot regard the raising of a remedy as having itself reversed those statutory effects. The persistence of the harm pointed out by the counterargument is left as it is, and one cannot regard the appeal against a ruling as stopping the operation of the stay order.
Among the facts of the synthetic scene, those relevant to this question are that Applicant A filed an action for revocation and that he is concerned that the enforcement of the disposition will proceed. This concern is a worry that it will become difficult to restore the state of affairs prior to judgment, and it occupies the place of the reasons aimed at by the prima facie showing as to the reasons for the application under paragraph (4). Since one cannot determine from the scene alone whether there are materials for judging the recoverability of the harm or the external effect of the stay, that condition remains undetermined. If it were confirmed that the purpose can be achieved merely by staying enforcement or procedure, the option of suspending the effect itself would narrow, but this concerns only the condition for choosing the scope of the stay and cannot be regarded as a fact that actually occurred.
The conclusion this section permits is that the detailed distinctions within the stages are limited to the express conditions of the prima facie showing of the reasons for the application and the non-staying effect of an immediate appeal against a ruling. Accordingly, a conclusion converting the receipt of an appeal against a ruling into a suspension of the effect of the stay order cannot be obtained from this section. Nor, however, does this section permit a conclusion that introduces materials absent from the scene to fix the recoverability of the harm or the external effect.
5.11Synthesis of Effectiveness, Blockage, and Undetermination
In this scene the problem is how to distinguish the conditions under which the stay of administrative action prior to judgment takes effect, the conditions under which it is barred, and the cases in which, for want of materials for judgment, the matter remains undetermined.
The statute sets out the burden at the application stage in mandatory language. "(4) In applying for a decision to stay execution under the provisions of paragraph (2), there shall be a prima facie showing of the reasons therefor." (Administrative Litigation Act, Article 23) The subject of this language is the party applying for a decision to stay execution, the act is the application, and the condition is a prima facie showing of the reasons therefor. Applicant A prepares materials on the disposition, the scheduled enforcement, the nature of the harm, urgency, and the public interest, as materials making clear the nature of the harm and its urgency. This provision, however, fixes only the burden of the application and does not go so far as to fix what stops after the application is made.
Meanwhile, the route of the remedy and its effect are fixed separately. "(5) An immediate appeal against a ruling may be taken against a decision to stay execution under the provisions of paragraph (2) or a decision of dismissal. In this case, an immediate appeal against a ruling against a decision to stay execution shall have no effect of staying the execution of the decision." (Administrative Litigation Act, Article 23) Here, a contest of the stay order means an immediate appeal against a ruling procedure premised on statutory effects. Since the prima facie showing is a requirement of the application and the non-staying effect is the effect of the remedy, if the two are combined into a single judgment, what stopped at the time the application was received and what remains even after the remedy is filed cannot be distinguished. Therefore, the cases in which the stay of administrative action prior to judgment takes effect are those in which irreparable harm and urgency are substantiated and the necessary scope of the stay and the public-interest limitation are met, while the cases in which it is barred are those in which urgent irreparable harm is not recognized or there is a risk that the stay would have a serious effect on the public interest.
The counterargument pressed most strongly takes aim at the point that the effect of an erroneous stay order may persist during the appeal against a ruling. If an erroneous decision keeps operating, the party must bear irreparable harm in the meantime, and criticism follows that the public interest is put off in order to look broadly at the urgent loss of an individual. In the author's view, this loss and inconvenience are not erased, and where it is confirmed belatedly that the stay order carries a risk of a serious effect on the public interest, that burden grows still larger. Since the receipt is a procedure that opens the remedy while the suspension of effect is a separate statutory effect that temporarily halts the stay order itself, the answer stands in that the former cannot take the place of the latter.
In this scene, only the fact is confirmed that Applicant A is concerned that it will become difficult to restore the state of affairs prior to the judgment on the merits. This fact moves toward the conditions for the stay to take effect where there are materials making clear the possibility and urgency of irreparable harm. The scene, however, presents no materials for judging the recoverability of the harm or the external effect of the stay, so the determination on this point remains undetermined. This does not mean that the risk of a serious effect upon the public interest has not been substantiated by materials; it means that, for want of materials for judgment, neither the opening nor the blocking is confirmed.
Accordingly, what opens the stay of administrative action prior to judgment is the case where irreparable harm and urgency are substantiated and the necessary scope of the stay and the public-interest limitation are met, and what blocks it is the case where urgent irreparable harm is not recognized or there is a risk that the stay would have a serious effect on the public interest. Undetermined is the case where there are no materials for judging the recoverability of the harm or the external effect of the stay, and a shortage of materials does not at once turn into an absence of remedy. Nor does the effect itself stop merely because an application has been received, nor does a suspension of effect arise merely because an appeal against a ruling has been received. Yet, just as the commencement of the remedy procedure cannot take the place of statutory effects, the finalization of the stay order and its maintenance are also separate questions.
5.12Conclusion Carried Over to the Next Section
The immediately preceding stage concluded that the ground for refusal, namely the risk of a serious effect on the public interest, must also be left to the same judgment. Among the questions of what stops when one applies for a stay or lodges an appeal against a ruling, what is at issue is how the decision operates after a remedy has been raised. Of particular concern is how the stay order operates while disputes between the parties continue after it has been issued.
To this question the relevant language lies in Article 23 of the Administrative Litigation Act. First, paragraph (4) of the same Article declares: "(4) In applying for a decision to stay execution under the provisions of paragraph (2), there shall be a prima facie showing of the reasons therefor." (Administrative Litigation Act, Article 23) Here, "prima facie showing" means that the subject applying for a decision to stay execution produces materials supporting, however lightly, the reasons for that application, and it refers to the requirement of the application itself seeking a decision to stay execution under paragraph (2). This language does not directly govern what measure a person who contests a stay order will later receive.
Paragraph (5) of the same Article provides: "An immediate appeal against a ruling may be taken against a decision to stay execution under the provisions of paragraph (2) or a decision of dismissal. In this case, an immediate appeal against a ruling against a decision to stay execution shall have no effect of staying the execution of the decision." The reason the two languages must be placed side by side is that the burden of proof at the application stage and the attribution of effect at the remedy stage belong to different stages of judgment. Paragraph (4) fixes that an application seeking a stay order requires a substantiation of reasons; paragraph (5) fixes that an immediate appeal against a ruling from a stay order already issued does not stay the execution of that decision. Thus the presence or absence of a prima facie showing and the effect after the receipt of an appeal against a ruling are not matters that substitute for one another, and one cannot regard the operation of the stay order obtained by Applicant A as ceasing merely because an appeal against a ruling has been received.
The counterargument that can be raised most strongly is as follows. While the stay order leaves in place a state in which the execution of the original disposition is halted and the parties go through the remedy procedure, if it turns out that the decision was in fact wrong yet its effect continues, concerns over irreparable harm or the public interest remain as they are. This, coupled with the point that if a stay is restricted on grounds of the public interest the party's irreparable harm is left unremedied, shows that the non-staying effect of paragraph (5) may rather produce a result disadvantageous to one side. Since the statute expressly states that an immediate appeal against a ruling has no effect of staying the execution of the decision, the fact of receipt cannot be regarded as a requirement changing the effect of that decision, and the harm pointed out by the counterargument remains as a matter to be dealt with through other avenues of relief.
Among the facts of the synthetic scene, what bears directly on this question is that Applicant A filed an action for revocation and is concerned that, if the enforcement of the disposition proceeds, it will become difficult to restore the state of affairs before the judgment on the merits. This concern stands as one of the materials for judging the nature of the harm and its urgency. However, whether A obtained a stay order, who lodged an appeal against a ruling against that decision, and how much material on the effect upon the public interest has been gathered cannot be determined from this scene alone. Since in the absence of materials for judging the recoverability of the harm or the external effect of the stay the latter judgment cannot be confirmed, such matters remain undetermined. Meanwhile, the contrast that if the purpose can be achieved merely by staying enforcement or procedure the option of suspending the effect itself is narrowed is placed with this section's scope limited to distinguishing the prima facie showing of the reasons for the application from the non-staying effect of an immediate appeal against a ruling, and the scope of the option to suspend the effect itself is not dealt with separately.
What can be confirmed at this point is that the requirement of a prima facie showing of the reasons for the application and the non-staying effect of an immediate appeal against a ruling from a stay order must be viewed separately, and an interpretation converting the receipt of an appeal against a ruling into a suspension of the effect of that decision is not permitted. Here, a contest of the stay order means an immediate appeal against a ruling procedure premised on statutory effects, and the fact that such remedy procedure is received does not of itself change the contents of the stay order presently in operation. However, how long and to what extent that decision is maintained after the appeal against a ruling, and how the state of provisional relief is finally wound up, cannot be determined at this point. If the stay order becomes final, is it maintained to the end?