Outline of the System of Administrative and Judicial Remedies Against Administrative Action in Japan
| Date | 01 June 1982 |
| Published date | 01 June 1982 |
| DOI | 10.1177/002085238204800216 |
| Author | Ichiro Ogawa |
| Subject Matter | Articles |
Outline
of
the
System
of
Administrative
and Judicial
Remedies
Against
Administrative
Action
in
Japan
UDC :
351.94/95
(52)
by
Ichiro
OGAWA,
Professor,
Seikei
University
I.
INTRODUCTION
.
In
Japan,
the
system
of
protection
against
administrative
action
was
extremely
poor
until
the
enactment
of
the
Constitution
of
Japan
after
World
War
II.
In
the
pre-war
period,
a
major
part
of
the
exercise
of
executive
power
was
placed
outside
the
review
of
the
courts.
The
Meiji
Constitution
established
the
Administrative
Court
by
adopting
the
prin-
ciple
of the
Continental
European
legal
sys-
tem
whereby
the
administration
and
the
judiciary
were
institutionally
separated.
There-
fore,
in
principle,
the
judicial
courts
had
no
jurisdiction
over
acts
pertaining
to
public
law
dealing
with
administration.
In
addition,
the
scope
of
matters
under
review
by
the
Admin-
istrative
Court
was
relatively
narrow
and
limited
to
those
enumerated
by
statute.
As
a
result,
a
large
number
of
administrative
actions
had
no
opportunity
to
be
scrutinized
either
by
the
judicial
or
the
administrative
courts.
This
system
was
fundamentally
reformed
by
the
Constitution
of
Japan
and
in
particular
Article
76,
Paragraphs
1
and
2
which
state
as
follows :
&dquo; The
whole
judicial
power
is
vested
in
the
Supreme
Court
and
in
such
inferior
courts
as
established
by
law &dquo;.
&dquo; No
extraordinary
tribunal
shall
be
estab-
lished,
nor
shall
any
organ
or
agency
of
the
executive
be
given
final
judicial
power &dquo;.
The
provision,
from
the
phrasing
of
the
article,
does
not
expressly
abolish
the
Admin-
istrative
Court
system.
However,
a
common
interpretation
is
that
this
provision
denies
the
maintenance
of the
Administrative
Court
sys-
tem.
Based
upon
such
interpretation,
the
Court
Organization
Law
declared
the &dquo;
ruling
of
all
legal
controversies &dquo;
by
the
judicial
courts
(Article
3,
Paragraph
1)
and
repealed
the
Administrative
Court
Law
(Supplementary
Provisions,
Paragraph
2).
In
this
way,
the
principle
was
established
whereby
all
disputes
concerning
an
act
of
an
administrative
agency
classified
as
&dquo; legal
controversies &dquo;
were
to
be
subject
to
the
ruling
of
judicial
courts
in
general.
This
reform
of
administrative
litigation
under
the
new
Constitution
also
meant
a
shift
from &dquo; administrative
state&dquo;
to
&dquo; judicial
state &dquo;.
This
does
not
imply,
however,
that
our
system
of
administrative
litigation
is
now
the
same
as
that
of the
Anglo-American
&dquo;judicial
state&dquo;,
nor
does
it
mean
that
ad-
ministrative
litigation
procedure
is
subject
to
rules
identical
to
those
which
apply
to
civil
litigation
between
private
individuals.
Various
principles
of
public
law
different
from
those
of
civil
law
apply
to
administrative
actions,
especially
to
those
actions
related
to
the
exer-
cise
of
public
authority.
Disputes
over
administrative
activities
are
directly
related
to
public
interest.
Thus,
civil
procedures
for
the
settlement
of
private
dispu-
tes
are
not
necessarily
suited
to
resolving
ad-
ministrative
litigation,
while
fundamental
mat-
ters
concerning
legal
procedures
are
tradition-
ally
provided
by
the
civil
procedure
law.
Therefore,
the
Special
Law
for
Administrative
Litigations
of
1948
enacted
the
procedures
for
administrative
litigation
which
were
mainly
based
upon
civil
procedure
law,
with
the
in-
clusion
of
a
number
of
special
rules.
The
law,
however,
was
still
found
to
be
inadequate,
and
in
1962,
the
present
Administrative
Litiga-
tion
Law
(ALL)
was
enacted
whereby
forms
of
administrative
litigation
and
procedures
for
court
hearings
were
provided
in
detail.
With
the
enactment
of
this
law,
the
present
admin-
istrative
litigation
system
in
Japan
was
estab-
lished.
The
Constitution
prohibits
any
organ
or
agency
of
the administration
being
given
ul-
timate
judicial
power.
According
to
the
provi-
sion,
however,
the
administrative
agencies
are
not
necessarily
prevented
from
making
pre-
liminary
rulings
prior
to
those
made
by
the
court.
In
Japan,
the
system
of
appeal
to
ad-
ministrative
agencies
has
existed
since
the
Meiji
period.
The
present
administrative
ap-
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