Forcing Agency Action or Inaction in Japan: When Can Businesses Use "Mandamus" (Gimuzuke Sosho) and "Injunctive Litigation" (Sashitome Sosho)?

Businesses operating in Japan sometimes face situations where challenging a past administrative decision through revocation litigation isn't enough. What if an administrative agency unlawfully refuses to issue a necessary permit, fails to take action against a competitor's illegal activities, or is about to make an illegal decision that will cause your business serious harm? To address these scenarios, Japan's Administrative Case Litigation Act (ACLA - 行政事件訴訟法 - Gyōsei Jiken Soshō Hō) provides for two powerful, albeit specific, types of lawsuits: Mandamus Litigation (義務付け訴訟 - Gimuzuke Soshō) to compel agency action, and Injunctive Litigation (差止訴訟 - Sashitome Soshō) to prevent unlawful agency action. These were formally codified and expanded in the significant 2004 ACLA revision, aiming to provide more comprehensive and proactive judicial remedies.

The Need for Expanded Remedies: Background of the 2004 ACLA Revision

Historically, Japanese administrative litigation centered heavily on "revocation litigation" (torikeshi soshō), which focuses on nullifying past illegal administrative dispositions. While crucial, this system had limitations:

• Reactive Nature: It primarily addressed harms that had already occurred through an issued disposition.
• Limited Power to Compel: Successfully revoking an agency's refusal to grant a permit didn't automatically mean the permit would then be issued; the agency would often just have to reconsider the application.
• Difficulty in Addressing Inaction: While a specific "litigation for confirmation of illegality of inaction" existed, its remedies were often seen as insufficient.
• Preventative Relief: There was no clearly established statutory route to proactively stop an agency from making an anticipated illegal disposition.

Legal scholars and practitioners had long discussed the need for remedies akin to mandamus and injunctions, sometimes theorizing them as "non-statutory public law appeals" (hōteigai kōkoku soshō). The 2004 ACLA revision responded to these needs by formally incorporating Mandamus Litigation and Injunctive Litigation into the statutory framework, aiming to enhance access to justice and provide more effective relief against a wider range of administrative misconduct or failures.

Mandamus Litigation (Gimuzuke Soshō): Compelling Agency Action (ACLA Article 3, Paragraph 6)

Mandamus litigation is designed to obtain a court order compelling an administrative agency to make a specific administrative disposition or an administrative review decision that it has failed to make or has unlawfully refused to make. The ACLA distinguishes between two main types:

A. Non-Application Type Mandamus (Hi-Shinsei-gata Gimuzuke Soshō or Direct Mandamus - ACLA Article 3(6)(i))

This type of mandamus is sought when an agency has a duty to make a certain disposition, but has not done so, and the plaintiff is not someone who has filed a formal application for that disposition. Often, it's a third party seeking to compel the agency to take regulatory action against another party.

• When Used:
  • A business seeking to compel a regulator to issue a corrective order against a competitor engaged in illegal activities that are harming the plaintiff's business.
  • Residents requesting an agency to issue a demolition order against an illegally constructed building that negatively impacts their environment.
• Key Requirements for Filing (ACLA Article 37-2, Paragraph 1):
  1. Likelihood of "Serious Damage": The plaintiff must show that "serious damage" (重大な損害 - jūdai na songai) will likely be incurred due to the agency's failure to make the disposition.
  2. "No Other Appropriate Means" (Supplementarity): There must be no other appropriate means available to avoid this damage. This generally refers to a lack of other specific statutory remedies that could achieve the same result, not necessarily the unavailability of any civil action against a third party.
  3. Legal Interest (Standing to Sue): The plaintiff must have a "legal interest" (hōritsujō no rieki) in seeking the mandamus. This is judged by criteria similar to those for standing in revocation litigation (i.e., an individual, legally protected interest, not just a general public interest or reflective benefit).
• Requirements for Success on the Merits (ACLA Article 37-2, Paragraph 5): To win, the court must find that the administrative agency is clearly and unambiguously legally obliged to make the specific disposition in question based on the law and facts. The agency should effectively have no discretion to not make the disposition or to make a different one. The requirement for this clarity was influenced by pre-revision case law, such as the Kunitachi Mansion Case (Tokyo District Court, December 4, 2001), which discussed the "one-meaning clear" (ichigi-teki meihaku) nature of the agency's obligation.

B. Application Type Mandamus (Shinsei-gata Gimuzuke Soshō - ACLA Article 3(6)(ii))

This type of mandamus is used when a party has filed an application with an administrative agency for a specific disposition (typically a permit, license, or approval), and the agency has either unlawfully refused the application or has failed to act on it within a reasonable period (inaction).

• When Used:
  • A business whose application for a necessary operating permit has been denied by an agency for reasons the business believes are illegal.
  • A company whose application for a subsidy has been pending with an agency for an unreasonably long time without a decision.
• Key Requirements for Filing (ACLA Article 37-3, Paragraph 1):
  This is a "piggyback" or conjunctive form of litigation. It must be filed in conjunction with one of the following:
  1. Litigation seeking the revocation of the agency's refusal disposition (if a refusal was issued).
  2. Litigation seeking confirmation of the illegality of the agency's inaction (if no decision has been made).
     This conjunctive filing requirement ensures that the mandamus claim is considered alongside a direct challenge to the agency's refusal or inaction.
• Standing to Sue: Typically not a contentious issue, as the plaintiff is the applicant who was directly refused or is experiencing inaction.
• Requirements for Success on the Merits (ACLA Article 37-3, Paragraph 5): To win, the court must find not only that the agency's refusal or inaction was illegal, but also that the agency is clearly legally obliged to grant the application (e.g., all statutory requirements for the permit are met by the applicant, and there are no valid legal grounds for the agency to refuse).

Business Relevance of Mandamus Litigation: This remedy is crucial for businesses that are stymied by unlawful agency refusals or unreasonable delays in processing applications essential for their operations. The non-application type can also be a tool to compel regulatory oversight where an agency's failure to act is harming a business's legitimate interests (e.g., by allowing unfair or illegal competition).

Injunctive Litigation (Sashitome Soshō): Preventing Unlawful Agency Action (ACLA Article 3, Paragraph 7)

Injunctive litigation provides a means to obtain a court order prohibiting an administrative agency from making an anticipated administrative disposition if that disposition would be illegal and would cause serious damage to the plaintiff. It is a form of preventative relief.

• Purpose: To stop an unlawful administrative action before it occurs and causes harm.
• Contexts for Use:
  • Bilateral Situations: The plaintiff is the likely direct addressee of an anticipated adverse disposition (e.g., a business seeking to prevent an agency from illegally revoking its license or issuing an unlawful operational restriction).
  • Trilateral Situations: A third party seeks to prevent an agency from issuing a disposition that would be beneficial to another party but illegal and harmful to the plaintiff (e.g., local residents trying to stop an agency from illegally granting a development permit for a polluting factory nearby).
• Key Requirements for Filing (ACLA Article 37-4, Paragraph 1):
  1. Likelihood of "Serious Damage": The plaintiff must demonstrate that there is an likelihood of "serious damage" (jūdai na songai) occurring due to the anticipated disposition being made. The Supreme Court (February 9, 2012) has clarified that "serious damage" in this context means harm that cannot be easily remedied by subsequently filing revocation litigation and obtaining a suspension of execution of the disposition after it has been made. The damage must be such that pre-emptive prohibition is necessary.
  2. "No Other Appropriate Means" (Supplementarity): There must be no other appropriate means available to avoid this damage. This means that if, for example, challenging a related prior administrative act would effectively prevent the feared subsequent disposition, injunctive litigation might not be deemed appropriate.
  3. Legal Interest (Standing to Sue) (ACLA Article 37-4, Paragraph 3 & 4): If the plaintiff is not the person who would be the direct addressee of the feared disposition (i.e., in trilateral situations), they must have a "legal interest" in seeking the injunction, judged by criteria similar to those for standing in revocation litigation.
• Requirements for Success on the Merits (ACLA Article 37-4, Paragraph 5): To win, the plaintiff must establish that the administrative agency has no legal authority to make the feared disposition at all, or that even if it has such authority in principle (discretion), making the disposition in the specific circumstances would constitute an abuse of discretion and thus be illegal.
• Likelihood of Disposition: While not explicitly detailed as a filing requirement in Article 37-4(1), the definition of injunctive litigation in Article 3(7) implies that the feared disposition must be reasonably anticipated or threatened.

Business Relevance of Injunctive Litigation: This is a vital tool for businesses to proactively protect themselves from imminent and unlawful administrative actions that could cause significant harm, such as preventing an unjustified shutdown order, stopping the arbitrary revocation of a key license before it takes effect, or halting the illegal issuance of a permit to a competitor that would fundamentally undermine the plaintiff's market position through unlawful means.

Provisional Remedies: Immediate Relief Pending Judgment (ACLA Article 37-5)

Recognizing that mandamus and injunctive litigation can be lengthy, the 2004 ACLA revision also introduced specific provisional remedies tailored to these actions, allowing for immediate interim relief:

• Provisional Mandamus (Kari no Gimuzuke - 仮の義務付け) (ACLA Article 37-5, Paragraph 1):
  When mandamus litigation (either type) is pending, a party can apply to the court for a provisional order compelling the administrative agency to make a disposition or administrative review decision. This can be granted if the court finds it urgently necessary to avoid "irreparable harm" (償うことのできない損害 - tsugunau koto no dekinai songai) that would arise from the agency's continued refusal or inaction.
• Provisional Injunction (Kari no Sashitome - 仮の差止め) (ACLA Article 37-5, Paragraph 2):
  When injunctive litigation is pending, a party can apply for a provisional order prohibiting the administrative agency from making the feared disposition. This also requires an urgent need to avoid "irreparable harm."

The threshold for "irreparable harm" is high, generally meaning harm that cannot be adequately compensated by a later award of monetary damages or for which subsequent remedies would be ineffective. These provisional measures are significantly more potent than the "suspension of execution" (shikkō teishi) available in revocation litigation, as they can affirmatively compel an agency to act or prohibit it from acting, rather than merely suspending the effects of an already issued disposition.

A Shift from the Traditional "Revocation Litigation-Centered" System

The formal introduction and elaboration of mandamus and injunctive litigation in the ACLA mark a significant evolution from Japan's traditional administrative justice system, which was heavily centered on revocation litigation. This shift reflects a recognition of the limitations of a purely reactive system:

• Proactive Remedies: These new litigation types provide more proactive tools. Mandamus can compel an agency to fulfill its duties, addressing unlawful inaction. Injunctions can prevent anticipated illegal harm before it materializes.
• More Complete Relief: Revoking a refusal to grant a permit doesn't, by itself, guarantee the permit will be issued. Application-type mandamus, filed conjunctively, allows the court to not only revoke the illegal refusal but also, if appropriate, order the permit to be granted, thus providing more complete relief.
• Addressing Systemic Gaps: They fill gaps where revocation litigation was an awkward or unavailable fit, such as when a third party needs an agency to take action against another, or when an illegal action is threatened but not yet formalized as a disposition.
• Respect for Administrative Discretion: While expanding judicial remedies, the requirements for these lawsuits (e.g., clarity of agency's obligation for mandamus, illegality of feared disposition for injunction) are designed to ensure courts do not unduly usurp the primary decision-making authority and legitimate discretion of administrative agencies.

Strategic Considerations for Businesses

When considering these forms of litigation, businesses should be mindful of:

• Choosing the Correct Litigation Type: Carefully analyze whether the situation calls for revoking a past act, compelling a future act, or preventing a future act. The conjunctive filing requirements for application-type mandamus are particularly important.
• Meeting the High Thresholds: The requirements for "serious damage" (for injunctions and non-application type mandamus) and "irreparable harm" (for provisional remedies) are demanding and require strong factual evidence. Similarly, proving that an agency is "clearly obliged" to act (for mandamus) or that a feared disposition is definitively illegal (for injunctions) can be challenging.
• The Role of Provisional Remedies: In urgent situations, seeking provisional mandamus or injunction alongside the main suit is critical to prevent harm while the case is pending.
• Supplementarity ("No Other Appropriate Means"): Thoroughly assess whether any other specific statutory remedies could achieve the desired outcome before resorting to these forms of litigation.

Brief Comparison with U.S. Mandamus and Injunctions

While the legal systems differ, there are some conceptual parallels with remedies in U.S. administrative law:

• Mandamus: The U.S. federal system has a writ of mandamus (28 U.S.C. § 1361) to compel a federal officer or employee to perform a duty owed to the plaintiff. Like its Japanese counterpart, it's an extraordinary remedy with strict requirements, including a clear right to relief, a clear duty on the part of the official, and the absence of other adequate remedies.
• Injunctions: U.S. federal courts possess general equitable powers to issue injunctions against unlawful federal agency actions, often reviewed under the standards of the U.S. APA (e.g., whether an action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law").
  The key difference lies in the codified and specific nature of Japan's ACLA provisions for these particular types of administrative lawsuits, including their distinct requirements and provisional remedies, whereas U.S. practice often draws from broader equity principles and general APA review standards for injunctive relief, and a specific (though narrowly construed) statute for mandamus.

Conclusion

Mandamus Litigation (Gimuzuke Soshō) and Injunctive Litigation (Sashitome Soshō) represent significant advancements in Japan's system of administrative justice, providing businesses and individuals with more robust and proactive tools to address agency inaction or prospective illegal conduct. While the evidentiary and legal thresholds for these actions are intentionally high to respect the legitimate sphere of administrative decision-making, their availability under the ACLA offers crucial avenues for compelling necessary agency actions and preventing serious, unlawful harm. For businesses navigating complex regulatory interactions in Japan, understanding these specialized forms of litigation is an important part of a comprehensive legal strategy.