A Japanese Regulator Issued a "Recommendation." Can We Legally Block a Subsequent Public Announcement of Non-Compliance?

Japanese Attorney at Law - Bengoshi L.L.

• 6 min read

In Japan's regulatory environment, formal sanctions like fines or license revocations are often the last resort in an escalating series of enforcement actions. Regulators frequently begin with non-binding "administrative guidance" (行政指導, gyōsei shidō) and then move to a more formal "recommendation" (勧告, kankoku). While these actions are not legally binding in themselves, they carry a significant threat: the power of the regulator to publicly announce a business's non-compliance.

This "naming and shaming" can be a powerful coercive tool, inflicting immediate and often irreversible reputational damage that can be more devastating than a monetary fine. For a business that believes a regulator's recommendation is based on a factual error or a misinterpretation of the law, this raises a critical and time-sensitive question: What legal remedies are available to prevent the regulator from making a damaging public announcement?

This article examines the legal strategies for challenging this type of administrative action. Using a case study involving a social welfare facility, it analyzes the legal nature of recommendations and public announcements and explains why the most effective legal tool is often a preemptive lawsuit known as an Action for a Prohibitory Injunction (差止めの訴え, sashitome no uttae), coupled with a request for urgent provisional relief.

The Case Study: A Social Welfare Facility Under Scrutiny

To understand the legal challenges, consider the following representative case.

The Factual Background

A social welfare corporation operates a residential support facility for persons with disabilities. Following an internal report, the prefectural governor conducts an inspection and concludes that incidents of staff abusing residents have occurred and that the facility's management failed to take appropriate action.

Under the authority of the Act for Comprehensive Support for Persons with Disabilities, the governor issues a formal recommendation (kankoku) to the corporation, demanding specific improvements to its management and abuse-prevention systems within one month. The governor's notice includes a stark warning: if the corporation fails to comply with the recommendation, the governor may publicly announce (kōhyō) the non-compliance and may, in the future, take more severe action, such as revoking the facility's operating designation.

The corporation strongly disputes the governor's findings of abuse. It believes the recommendation is based on a misunderstanding of the facts and is therefore illegal. Its primary and immediate concern is the immense damage to its reputation and public trust if the governor proceeds with the public announcement. The corporation needs to stop the announcement before it happens.

The correct legal strategy depends entirely on the legal classification of the governor's actions. Are the "recommendation" and the threatened "public announcement" legally challengeable acts?

Is the "Recommendation" Itself a Challengeable Disposition?

Typically, administrative guidance like a recommendation is not considered a formal "administrative disposition" (gyōsei shobun) because it is not legally binding. As such, it generally cannot be the target of a revocation lawsuit.

However, the Supreme Court of Japan has carved out a narrow exception. In a key decision on July 15, 2005, concerning a recommendation issued to a hospital, the Court held that a non-binding recommendation can be treated as a disposition if it is a legally required prerequisite for a subsequent, legally binding, and disadvantageous disposition. If non-compliance with the recommendation automatically and inevitably leads to a formal sanction, then the recommendation itself creates a concrete legal disadvantage and can be challenged in court.

This is a high bar. In our case study, while the governor has threatened further action, the public announcement is not an automatic legal consequence of non-compliance. Therefore, directly challenging the recommendation itself would be a difficult, though not impossible, legal strategy.

Is the "Public Announcement" a Challengeable Disposition?

The public announcement presents a similar problem. The act of publishing information is, on its face, a factual act, not a legal one. However, its purpose and effect can be punitive. Japanese legal theory often distinguishes between two types of public announcements:

  1. Informational Announcements: Aimed at providing useful information to the public (e.g., product safety warnings). These are generally not considered dispositions.
  2. Sanction-based Announcements: Used as a penalty to coerce compliance.

The announcement in our case clearly falls into the second category. It is a sanction designed to punish the corporation for non-compliance and pressure it into accepting the governor's recommendations. Because of its coercive and punitive nature, one could argue that it functions as a disposition. However, courts have been reluctant to classify one-time factual acts as formal dispositions, creating legal uncertainty around this approach.

The Preferred Remedy: A Preemptive Lawsuit to Prohibit the Announcement

Given the legal ambiguities of challenging the past recommendation or the future announcement as a "disposition," the most direct and legally sound strategy is to file an Action for a Prohibitory Injunction (差止めの訴え, sashitome no uttae).

Governed by Article 37-4 of the Administrative Case Litigation Act, this type of lawsuit does not seek to revoke a past action. Instead, it asks the court to prohibit a future administrative act that is likely to occur.

In our case, the social welfare corporation would file a lawsuit seeking a court order that "prohibits the governor from publicly announcing that the corporation has failed to comply with the recommendation of [Date]." This approach bypasses the difficult debate over the dispositional character of the recommendation and focuses directly on preventing the future act that will cause the most harm.

The Critical Step: Seeking a Provisional Order of Prohibition

A lawsuit can take months to resolve. For the corporation, that is too long to wait. Once the governor makes the public announcement, the reputational damage is done. A legal victory months later cannot erase the negative press or restore public trust.

Therefore, the most critical step is to, at the same time as filing the main lawsuit, file an application for a Provisional Order of Prohibition (仮の差止め, kari no sashitome).

Governed by Article 37-5 of the Act, this is the Japanese administrative law equivalent of a temporary restraining order (TRO) or preliminary injunction. It is an emergency remedy that asks the court to temporarily freeze the status quo and prohibit the administrative action while the main case is being decided. It is the only effective way to prevent the harm before it occurs.

Meeting the High Bar for a Provisional Order

Courts do not grant provisional orders lightly. The applicant must satisfy a strict, two-part test (in addition to showing that no overriding public interest would be harmed).

1. "Grave Harm" (重大な損害, Jūdai na Songai)

The applicant must demonstrate that they are likely to suffer "grave harm" if the provisional order is not granted. "Grave harm" is understood to be serious and irreparable, the kind of damage that cannot be adequately compensated with money after the fact.

In this case, the corporation would argue that the public announcement of non-compliance with a recommendation concerning resident abuse would cause catastrophic and irreversible damage to its reputation. A social welfare corporation's existence depends entirely on the trust of its clients, their families, and the community. A public "naming and shaming" by the governor could lead to:

  • Current residents leaving the facility.
  • A loss of future applicants.
  • Damage to relationships with donors and supporting organizations.
  • Difficulty in recruiting and retaining qualified staff.

This collection of consequences could threaten the very survival of the organization, and as such, constitutes "grave harm."

2. Likelihood of Success on the Merits (本案について理由があるとみえるとき)

The applicant must also establish a strong prima facie case—that is, they must convince the court that they are likely to win the main lawsuit. This requires moving beyond procedural arguments and tackling the substance of the dispute.

The corporation would need to present the court with compelling evidence to counter the governor's findings. This could include:

  • Internal incident reports that offer a different context for the alleged "abuse."
  • Testimony from staff and other residents disputing the governor's version of events.
  • Evidence that the actions deemed "abuse" were, in fact, necessary and appropriate measures to de-escalate a situation where a resident posed a danger to themselves or others.

If the court is persuaded that the governor's factual findings are likely erroneous or that his interpretation of "abuse" is legally flawed, then it would conclude that the underlying recommendation is illegal. If the recommendation is illegal, then any public announcement of non-compliance with it would also be illegal. This would satisfy the "likelihood of success" requirement.

Conclusion

The use of public announcements as a tool of administrative enforcement places businesses in a vulnerable position, where the threat of reputational damage can be used to compel compliance with even a legally dubious recommendation. However, Japanese administrative law provides a powerful, if challenging, countermeasure.

When faced with the imminent threat of a punitive public announcement, the most effective legal strategy is often to act preemptively. The Action for a Prohibitory Injunction, combined with an urgent application for a Provisional Order of Prohibition, offers a direct path to seek judicial intervention before irreversible harm is done. Success hinges on a business's ability to demonstrate to a court both the gravity of the potential reputational damage and the substantive illegality of the regulator's underlying claims. This provides a crucial judicial check against the administrative weaponization of public information.