An Alternative to Court? How to Use Japan's Administrative Complaint Review System to Challenge Agency Decisions

When businesses in Japan encounter administrative decisions—such as the denial of a permit, the imposition of a sanction, or an unfavorable tax assessment—the immediate thought might be to consider court litigation. However, Japan offers a significant, often more accessible, and sometimes mandatory preliminary route for redress: the Administrative Complaint Review System (行政不服審査制度 - Gyōsei Fufuku Shinsa Seido). Governed primarily by the Administrative Complaint Review Act (行政不服審査法 - Gyōsei Fufuku Shinsa Hō, hereinafter "ACRA"), this system allows parties to seek a review of administrative actions directly from administrative authorities. This article explores the purpose, key features, procedures, and practical implications of this system, particularly in light of its major overhaul in 2014.

What is the Administrative Complaint Review System?

The Administrative Complaint Review System provides a formal mechanism for individuals and businesses to lodge complaints against administrative dispositions (行政処分 - gyōsei shobun) or administrative inaction (不作為 - fusakui) with an administrative agency, seeking their revocation, alteration, or other remedies.

The stated purposes of the ACRA (Article 1) are twofold:

1. To relieve the rights and interests of citizens (including legal entities).
2. To ensure the proper operation of public administration.

Compared to judicial review by courts, the administrative complaint system offers several distinct characteristics:

• Scope of Review: Crucially, administrative complaint review can examine not only the illegality (違法 - ihō) of an administrative action but also its impropriety (不当 - futō). "Impropriety" refers to whether a discretionary decision, even if not strictly illegal, was unreasonable, unfair, or inappropriate under the circumstances. Courts, in contrast, primarily focus on questions of illegality.
• Simplicity and Speed: The procedures are generally designed to be simpler, less formal, and quicker than court litigation, often making it a more accessible first step for seeking redress.
• Cost: It is typically less expensive than pursuing a court case.
• Procedural Approach: While court litigation is highly adversarial and relies on parties presenting evidence, administrative complaint review often involves a greater degree of ex officio investigation by the reviewing authority (i.e., the authority can investigate facts and evidence on its own initiative).

The 2014 Overhaul: Enhancing Fairness and Transparency

The ACRA underwent a comprehensive revision in 2014 (effective 2016), significantly restructuring the system to bolster its fairness, neutrality, and transparency. Key changes included:

• Unification of Complaint Types: The former system had multiple types of initial complaints. The revision largely unified the main initial complaint into a "Request for Administrative Review" (審査請求 - shinsa seikyū), abolishing the "Objection" (異議申立て - igi mōshitate) as a primary general route.
• Introduction of Review Officers (Shinri'in): For most shinsa seikyū cases, a "review officer" (審理員 - shinri'in) is now designated by the reviewing agency. This officer must be someone not involved in the original disposition, tasked with impartially conducting the deliberation process.
• Mandatory Consultation with Review Boards: After the review officer provides their opinion, the reviewing agency (e.g., a Minister) is generally required to consult an "Administrative Complaint Review Board" (行政不服審査会 - Gyōsei Fufuku Shinsakai) or a similar body at the local government level. These boards consist of independent experts and provide a third-party check on the process before a final decision is made.
• Extended Complaint Period: The standard period for filing a shinsa seikyū was extended from 60 days to three months from awareness of the disposition.
• Strengthened Remedies: The revised Act clarified and, in some cases, expanded the types of decisions the reviewing agency can make, including ordering an agency to take action in cases of inaction regarding an application.

Types of Complaints Available Under the ACRA

The current ACRA primarily provides for the following types of complaints:

1. Request for Administrative Review (Shinsa Seikyū) (審査請求): This is the principal and most common form of complaint. It is filed to seek a review of an administrative disposition or inaction.
2. Request for Reinvestigation (Sai-chōsa no Seikyū) (再調査の請求): This is an optional, preliminary procedure available only if specifically provided for by an individual law (e.g., under the National Tax General Rules Act for tax dispositions). It is filed with the administrative agency that originally made the disposition, offering a chance for that agency to reconsider its own decision quickly. A party can choose to file a shinsa seikyū directly without first making a request for reinvestigation.
3. Request for Re-examination (Sai-shinsa Seikyū) (再審査請求): This is also an optional procedure, available only if specifically provided for by an individual law. It allows a party dissatisfied with the outcome of a shinsa seikyū to seek a further review, typically from a different administrative authority. An example is a re-examination by the Minister of Land, Infrastructure, Transport and Tourism of a decision made by a municipal Building Review Council concerning a building permit.

Key Procedural Aspects: Who, What, and When?

Who Can File and What Can Be Challenged?

• Complainant's Standing (不服申立ての利益 - fufuku mōshitate no rieki): Similar to court litigation, a party must have a "legal interest" to file an administrative complaint. This generally means the disposition must have directly affected their rights or legally protected interests. A mere factual or indirect interest is insufficient. The Supreme Court (e.g., decision of March 14, 1978) has indicated that this standard is analogous to the "legal interest" required for standing in revocation litigation before a court.
• Subject Matter of Complaint: The complaint must be against:
  • An "administrative disposition or other act that falls under the exercise of public power" which is deemed illegal or improper (ACRA Article 1, Paragraph 1). The scope of what constitutes a "disposition" here is generally interpreted in line with the concept of shobun-sei in administrative litigation.
  • An administrative agency's "inaction" (fusakui) in response to an application made under laws and regulations (ACRA Article 3).

Reviewing Authority (Shinsachō)

The agency to which a shinsa seikyū should be addressed (the reviewing authority or 審査庁 - shinsachō) depends on the circumstances (ACRA Article 4):

• If the disposition agency has a direct administrative superior (e.g., a local branch office of a national ministry), the complaint is generally filed with the highest administrative agency directly superior to that disposition agency.
• If the disposition agency has no administrative superior (e.g., a Minister, a prefectural governor, a municipal mayor), or if so stipulated by law, the complaint is filed with the disposition agency itself.
• Individual laws may designate a specific third-party body as the reviewing authority (e.g., the National Tax Appeal Tribunal for national tax disputes, the Personnel院 (Jinji-in) for certain national public servant disciplinary matters, or municipal/prefectural Building Review Councils for certain building-related dispositions).

Time Limits for Filing

• For a Shinsa Seikyū or Sai-chōsa no Seikyū: Generally, the complaint must be filed within three months from the day following the day the person became aware of the disposition (ACRA Article 18, Paragraph 1; Article 54, Paragraph 1).
• For a Sai-shinsa Seikyū: Generally, within one month from the day following the day the person became aware of the decision on the prior shinsa seikyū (ACRA Article 62, Paragraph 1).
• Objective Time Limit: If the person was not aware of the disposition (e.g., a third party not directly notified), an objective time limit of one year from the day following the date of the disposition (or the decision on the prior review) generally applies (ACRA Article 18, Paragraph 2; Article 54, Paragraph 2; Article 62, Paragraph 2).
  These periods can be extended if there are "justifiable grounds" for the delay.

The Review Process: A Step-by-Step Guide (Focusing on Shinsa Seikyū)

The 2014 ACRA revision established a more structured and arguably more neutral deliberation process for shinsa seikyū cases:

1. Filing the Complaint: The complainant submits a written request for administrative review to the appropriate reviewing authority, detailing the disposition being challenged and the reasons for the complaint (ACRA Article 19).
2. Designation of a Review Officer (Shinri'in) (ACRA Article 9): Upon receiving the complaint, the reviewing authority (unless it's a council or similar body itself) designates a review officer from its staff. This officer must not have been involved in the original disposition or related investigations to ensure impartiality.
3. Deliberation by the Review Officer: This is the core fact-finding and argument-gathering stage.
   • The review officer requests the disposition agency (or agency responsible for inaction) to submit an explanation or "statement of defense" (弁明書 - benmei-sho) (ACRA Article 29, Paragraph 2).
   • The complainant receives this statement and can submit a rebuttal (反論書 - hanron-sho) (ACRA Article 30).
   • Oral Hearing: The complainant or an intervenor has the right to request an opportunity to state their opinions orally before the review officer (口頭意見陳述 - kōtō iken chinjutsu) (ACRA Article 31).
   • Access to Documents: The complainant and intervenors have the right to inspect documents submitted by the disposition agency or other parties (閲覧請求権 - etsuran seikyū-ken), and can also request copies (ACRA Article 38).
   • Evidence Gathering: The review officer can request the submission of further evidence, question relevant persons, conduct inspections, or seek expert opinions, often ex officio (on their own initiative) (ACRA Articles 32-36). This ex officio power is a notable feature, allowing the reviewer to look beyond what the parties present. The Supreme Court affirmed such ex officio powers even under the older Petition Act (decision of October 14, 1954).
   • Upon completion of the deliberation, the review officer prepares a written "review officer's opinion" (審理員意見書 - shinri'in iken-sho) summarizing the facts, arguments, and their recommendation on the outcome of the complaint. This is submitted to the reviewing authority (ACRA Article 42).
4. Consultation with an Administrative Complaint Review Board, etc. (ACRA Article 43):
   • After receiving the review officer's opinion, the reviewing authority (if it is a minister, governor, mayor, etc., but not if it is already a specialized board like the National Tax Appeal Tribunal) must, in principle, consult with an Administrative Complaint Review Board or a similar expert body established within its jurisdiction.
   • These boards are composed of impartial experts and are designed to provide an independent, third-party check on the review process. They examine the case files and the review officer's opinion and issue their own report (答申 - tōshin) to the reviewing authority.
5. The Final Adjudication or Decision (Saiketsu or Kettei) (ACRA Articles 45-51):
   • Based on the review officer's opinion and the report from the Review Board, the reviewing authority makes its final determination. This is called an "adjudication" (裁決 - saiketsu) for a shinsa seikyū or sai-shinsa seikyū, and a "decision" (決定 - kettei) for a sai-chōsa no seikyū.
   • Types of Adjudications/Decisions:
     • Dismissal on procedural grounds (Kyakka): If the complaint is unlawful (e.g., filed out of time, no standing), it is dismissed without considering the merits (ACRA Article 45, Paragraph 1).
     • Dismissal on merits (Kikyaku): If the complaint is lawful but, upon review of the merits, found to be without basis, it is dismissed (ACRA Article 45, Paragraph 2).
     • Upholding the complaint (Ninyō): If the complaint is found to have merit, the reviewing authority issues an adjudication upholding it. This can lead to:
       • Revocation of all or part of the original disposition (ACRA Article 46, Paragraph 1).
       • Alteration of the original disposition (e.g., reducing a penalty). However, the alteration cannot be to the complainant's disadvantage (ACRA Article 48).
       • For inaction on an application, a declaration that the inaction is illegal or improper, and an order for the agency to take some action on the application (ACRA Article 49, Paragraph 3).
     • Adjudication on Circumstances (Jijō Saiketsu) (ACRA Article 45, Paragraph 3): Similar to a "judgment on circumstances" in court litigation, the reviewing authority may declare a disposition illegal or improper but refrain from revoking or altering it if doing so would cause serious harm to the public interest. The complainant's substantive injury is acknowledged through this declaration.
   • The adjudication must be in writing, state the reasons for the decision, and be served on the complainant and other relevant parties (ACRA Article 50, 51).

Key Differences and Relationship with Administrative Litigation (Court Action)

While both systems aim to provide redress against administrative actions, there are fundamental differences:

Under ACLA Article 8, a party generally has a free choice (自由選択主義 - jiyū sentaku shugi) whether to first file an administrative complaint or go directly to court. However, many individual laws stipulate a "complaint review first" principle (不服申立て前置主義 - fufuku mōshitate zenchi shugi), making administrative complaint review a mandatory prerequisite before filing a lawsuit (e.g., for national tax disputes, disciplinary actions against national public servants).

If a party does pursue administrative complaint review and is still dissatisfied with the outcome (the adjudication), they can then generally file revocation litigation in court. In such cases, the lawsuit typically challenges the original disposition, not the administrative review decision itself, unless the review decision contains its own independent illegality (this is known as the original disposition principle or 原処分主義 - gen shobun shugi, ACLA Article 10, Paragraph 2).

Instruction (Notification) System (Kyōji Seidō)

To ensure that individuals and businesses are aware of their rights, the ACRA (Article 82) mandates that when an administrative agency makes a disposition in writing that is subject to administrative complaint, it must instruct (notify) the recipient about:

• The fact that an administrative complaint can be filed.
• The administrative agency to which the complaint should be submitted.
• The time limit for filing the complaint.
  The ACRA also provides remedies if the agency fails to provide this instruction or provides incorrect instruction, such as allowing the complaint to be filed with the disposition agency itself, which must then forward it to the correct authority (ACRA Article 83).

Practical Considerations for Businesses

For businesses facing adverse administrative decisions in Japan, the Administrative Complaint Review System can be a valuable tool:

• First Port of Call: It's often a quicker and less expensive way to seek reconsideration of an agency's decision compared to immediately resorting to court.
• Challenging "Impropriety": If the core issue is not pure illegality but rather that a discretionary decision was unreasonable or unfair, this system offers a unique avenue for review that courts might not fully entertain.
• Information Gathering: The process, including the agency's statement of defense and access to documents, can help a business better understand the agency's reasoning and gather information, which can be useful even if court litigation is subsequently pursued.
• Strategic Use: Even if the chances of a complete reversal are perceived as low, filing a complaint can signal a serious challenge and potentially open doors for negotiation or a modified outcome.
• Understanding Mandatory Routes: Businesses must be aware of whether specific laws require them to exhaust administrative complaint procedures before they can access the courts.

The 2014 reforms, with the introduction of review officers and review boards, were intended to enhance the system's neutrality and credibility. While it remains an internal administrative process, these changes aim to provide a more objective review than was previously the case.

Conclusion

Japan's Administrative Complaint Review System offers a significant, accessible, and often strategically important avenue for businesses to challenge administrative decisions outside the courtroom. Its ability to review both the illegality and impropriety of actions, coupled with procedures designed for relative speed and lower cost, makes it an attractive option. The 2014 revisions have further aimed to strengthen its fairness and transparency. While it may not always be a substitute for judicial review, particularly where definitive legal interpretations or substantial damages are sought, it serves as a vital component of Japan's administrative redress mechanisms, empowering businesses to seek reconsideration and hold administrative agencies accountable.