How Can I Temporarily Halt a Harmful Administrative Action in Japan While My Lawsuit is Pending? Understanding Stays of Execution

Japanese Attorney at Law - Bengoshi L.L.

• 10 min read

When a business or individual in Japan is subjected to an administrative action—such as a license revocation, an operational suspension order, or a directive imposing significant burdens—challenging its legality through a formal lawsuit can be a lengthy process. During this period, if the challenged administrative action is allowed to take effect or remain in force, the plaintiff might suffer substantial or even irreversible harm, potentially rendering a future victory in the main lawsuit a pyrrhic one. Recognizing this, Japanese administrative litigation law provides for "provisional remedies" (kari no kyūsai), which are mechanisms designed to offer temporary relief and preserve the status quo or prevent imminent damage pending the final judgment on the merits of the case. This article focuses primarily on the most commonly sought provisional remedy, the "stay of execution" (shikkō teishi), and briefly introduces other provisional orders available under the Administrative Case Litigation Act (ACLA).

The Default Rule: Lawsuits Do Not Automatically Halt Administrative Actions (ACLA Article 25, Paragraph 1)

It is a fundamental principle in Japanese administrative law, explicitly stated in Article 25, Paragraph 1 of the ACLA, that the mere filing of a lawsuit to revoke an administrative disposition (torikeshi soshō) does not automatically suspend the execution of that disposition or halt its ongoing legal effects. This is often referred to as the "principle of non-suspension of execution" (shikkō futeishi no gensoku).

The rationale behind this default rule is twofold:

  1. Maintaining Administrative Effectiveness: If every challenged administrative action were automatically put on hold, it could lead to administrative paralysis, severely hampering the government's ability to carry out its functions and enforce laws.
  2. Preserving Kōtei-ryoku: It aligns with the doctrine of kōtei-ryoku (presumption of legality/binding force), which posits that an administrative disposition is considered valid and effective until formally overturned by a competent authority.

Given this principle of non-suspension, the availability of specific provisional remedies becomes critically important for any party seeking to prevent immediate or irreparable harm while their legal challenge is being adjudicated.

The Stay of Execution (Shikkō Teishi) under ACLA Article 25

The most established and frequently utilized provisional remedy in administrative litigation is the stay of execution (shikkō teishi), provided for in Article 25 of the ACLA.

Purpose: A stay of execution aims to temporarily suspend the legal force (kōryoku), the execution (shikkō), or the continuation of procedures (tetsuzuki no zokkō) related to an administrative disposition (or a part thereof). This is granted by a court if certain stringent conditions are met, thereby preventing the plaintiff from suffering serious harm while the main revocation lawsuit is pending.

Who Can Apply: Typically, a stay of execution can be sought by the plaintiff who has filed a revocation lawsuit challenging the underlying administrative disposition. It can also be requested in other types of appeal litigation (kōkoku soshō) where applicable.

Requirements for Granting a Stay (ACLA Article 25, Paragraphs 2 and 3):
A court may grant a stay of execution only when it finds that all the following conditions are met:

  1. Existence of a Pending Revocation Lawsuit (or similar appeal litigation): A formal lawsuit challenging the legality of the administrative disposition must be properly before the court. A stay is ancillary to this main action.
  2. "Serious Harm" (Jūdai na Songai) that is Otherwise Difficult to Avoid (ACLA Article 25(2)):
    This is a central and often highly contested requirement. The plaintiff must demonstrate that the execution of the disposition is likely to cause them "serious harm."
    • Evolution of the Standard: The 2004 revision of the ACLA significantly altered this standard. Prior to 2004, the requirement was for "irreparable harm" (kaifuku no konnan na songai), a notoriously difficult threshold to meet, often interpreted as harm that could not be adequately compensated by money after the fact. The revision replaced this with "serious harm," which is generally considered a more lenient and accessible standard.
    • Guidance in ACLA Article 25(3): The revised ACLA provides statutory guidance on interpreting "serious harm." It specifies that "serious harm" refers to harm that, due to its nature or extent, or the nature or extent of the disposition, is difficult for the person to bear. It also includes situations where, even if the disposition is eventually revoked after its execution, it will be difficult to achieve the objective of the revocation suit because the person will have suffered harm that cannot be compensated by money or that is otherwise difficult to restore to its original state (e.g., loss of business goodwill, irreversible environmental damage, damage to reputation).
    • The Lawyer Disciplinary Action Case (Supreme Court, Petty Bench Decision, December 18, 2007; related to case 22-1): This case provides a key interpretation of the revised "serious harm" standard. A lawyer received a 3-month suspension from practice. The Supreme Court upheld a lower court's decision to grant a stay of execution. It found that the potential loss of social credibility and the damage to professional trust relationships resulting from the disciplinary action, especially considering the lawyer had 31 pending cases with scheduled court dates during the proposed suspension period, could indeed constitute "serious harm" under the broader post-2004 interpretation. This reflected a greater willingness to consider non-monetary but significant professional and reputational damage as "serious."
  3. "Urgent Necessity" (Kinkyū no Hitsuyō) (ACLA Article 25(2)):
    The stay must be urgently needed to prevent the occurrence of the serious harm. This implies that the harm is not merely speculative or distant but is imminent or likely to materialize quickly if the disposition is not suspended.
  4. Exceptions – When a Stay Cannot Be Granted (ACLA Article 25(4)):
    Even if serious harm and urgency are established, a court cannot grant a stay of execution in two specific situations:
    • (a) If the Stay Is Likely to Seriously Affect Public Welfare (Kōkyō no Fukushi ni Jūdai na Eikyō o Oyobosu Osore ga Aru Toki): The court must balance the plaintiff's interest in avoiding serious harm against the broader public interest that might be compromised if the administrative disposition is suspended. If suspending the disposition poses a significant threat to public welfare (e.g., by seriously impairing public safety, environmental protection, or essential public services), a stay will be denied, even if the plaintiff faces serious harm.
    • (b) If It Appears from the Outset that the Main Revocation Suit Has No Grounds (Hon'an ni Tsuite Riyū ga Nai to Mieru Toki): The court will not grant a stay if it is obvious from a preliminary review of the case that the plaintiff's main lawsuit challenging the legality of the disposition has no reasonable prospect of success. This is a prima facie assessment of the merits, not a full determination, but it prevents stays from being granted for frivolous or clearly unfounded lawsuits.

Court's Discretion: Even if the positive requirements (serious harm, urgency) appear to be met and the negative exceptions do not clearly apply, the ultimate decision to grant or deny a stay of execution rests within the sound discretion of the court. The court weighs all the circumstances.

Duration of a Stay: A stay of execution is a temporary measure. It typically remains in effect until the judgment in the main revocation lawsuit becomes final and binding, or for a shorter period if specified by the court. It can also be revoked by the court if circumstances change (e.g., if it becomes apparent that the main suit lacks merit or if the stay starts to cause serious public welfare issues).

The Deportation Order Case (Supreme Court, Petty Bench Decision, March 10, 1977; related to case 22-2) offers an older perspective on the balancing of harm and access to justice. An individual facing deportation obtained a stay, but only until the first-instance judgment. He argued this was insufficient, as a loss at first instance would lead to immediate deportation, effectively denying his right to appeal. The Supreme Court rejected this, stating that the right to appeal was not extinguished; he could pursue it through a legal representative from abroad and could even apply for re-entry if his physical presence was deemed necessary for subsequent court proceedings. While decided under the older, stricter "irreparable harm" standard, it illustrates the judiciary's consideration of how to balance immediate relief with the overall progression of legal challenges.

Provisional Orders for Obligation and Injunction (ACLA Article 37-5)

The 2004 revision of the ACLA introduced two new types of provisional remedies, significantly expanding the options for interim relief beyond just the stay of execution. These are the "provisional order for obligation" (kari no gimuzuke) and the "provisional injunction" (kari no sashitome). These are designed for situations where merely suspending an existing harmful disposition is insufficient or inapplicable—for example, when an agency unlawfully refuses to act, or when a party seeks to prevent an anticipated harmful disposition from being made in the first place.

These are more potent remedies than a simple stay of execution and, accordingly, have stricter requirements.

A. Provisional Order for Obligation (Kari no Gimuzuke)

  • Purpose (ACLA Article 37-5, Paragraph 1): This remedy is available when a plaintiff has filed an "obligation-seeking suit" (gimuzuke soshō). An obligation-seeking suit aims to compel an administrative agency to make a specific disposition (e.g., issue a permit) that it has unlawfully refused or failed to make despite a legal duty to do so. If the conditions are met, the court can issue a provisional order temporarily compelling the agency to make that disposition (or a similar one) pending the outcome of the main suit.
  • Requirements:
    1. An obligation-seeking suit concerning the disposition must be pending.
    2. There must be an "urgent necessity to avoid irremediable harm" (tsugunau koto no dekinai songai o sakeru tame kinkyū no hitsuyō) that would result from the continued absence of the disposition. "Irremediable harm" is a higher standard than the "serious harm" required for a stay of execution. It generally implies harm that cannot be adequately compensated by money or otherwise restored to its original state if the plaintiff waits for the final judgment.
    3. The main obligation-seeking suit must "appear to have grounds" (hon'an ni tsuite riyū ga aru to mieru toki). This is generally interpreted as requiring a higher probability of success on the merits of the main case than the "no apparent lack of grounds" standard for a stay of execution. The plaintiff needs to make a stronger preliminary showing that they are likely to win their underlying lawsuit.
  • The Daycare Admission Case (Tokyo District Court Decision, January 25, 2006; related to case 22-3) is an example where such an order was granted. A city had refused to admit a child with a disability to a regular municipal daycare center. The court, in granting a provisional order compelling temporary admission, found that denying the child the opportunity for daycare attendance and social development during their formative early years could constitute "irremediable harm." It also found, on a preliminary basis, that the city's refusal likely constituted an abuse of discretion, thus satisfying the "appears to have grounds" requirement for the main suit.

B. Provisional Injunction (Kari no Sashitome)

  • Purpose (ACLA Article 37-5, Paragraph 2): This remedy is available when a plaintiff has filed an "injunction-seeking suit" (sashitome soshō). An injunction-seeking suit aims to prevent an administrative agency from making an anticipated harmful disposition that it is likely to make. If the conditions are met, the court can issue a provisional order temporarily prohibiting the agency from making that disposition.
  • Requirements: The requirements are very similar to those for a provisional order for obligation:
    1. An injunction-seeking suit concerning the anticipated disposition must be pending.
    2. There must be an urgent necessity to avoid "irremediable harm" that would result if the anticipated disposition were to be made.
    3. The main injunction-seeking suit must "appear to have grounds."
  • The Daycare Abolition Ordinance Case (Kobe District Court Decision, February 27, 2007; related to case 22-4) illustrates this. Parents and children sued to prevent a city from enacting an ordinance that would abolish their specific municipal daycare center and transfer its operations to a private entity. They sought a provisional injunction against the enactment of this specific ordinance. The District Court granted a provisional injunction, preventing the city from enacting the ordinance (insofar as it abolished that particular daycare) until the judgment in the first instance of the main lawsuit. The court considered that the disruption to the children's established care environment and the potential negative impacts on their well-being, along with the infringement of the parents' legitimate expectations and right to choose public daycare, could constitute "irremediable harm" not adequately compensable by monetary damages. It also found, on a preliminary basis, that the city's allegedly hasty privatization process, without adequate transition planning or consideration of alternatives, appeared to be an abuse of discretion, suggesting the main suit had merit.

Both provisional orders for obligation and injunction are also subject to the same negative conditions as a stay of execution (ACLA Article 37-5, Paragraph 3, applying Article 25, Paragraph 4 by analogy): they cannot be granted if doing so is likely to seriously affect public welfare or if the main suit appears to have no grounds.

Relationship with General Civil Provisional Remedies (ACLA Article 44)

It is important to distinguish these ACLA-specific provisional remedies from the general provisional remedies (such as provisional attachment or provisional disposition/injunction - karishobun) available under the Code of Civil Procedure. ACLA Article 44 explicitly states that "provisions concerning provisional dispositions in the Code of Civil Procedure shall not apply to revocation suits and other appeal litigation."

The general interpretation of this provision is that for matters that fall within the scope of "appeal litigation" under the ACLA—that is, challenges to administrative dispositions or adjudications—one cannot bypass the ACLA's specific provisional remedy framework (stay of execution, provisional orders for obligation/injunction) and instead seek general civil provisional remedies. The ACLA provides a specialized and exclusive set of tools for interim relief in these administrative law contexts.

An older case, the Hanshin Expressway Construction Prohibition Case (Kobe District Court (Amagasaki Branch) Decision, May 11, 1973; related to case 22-5), decided before the 2004 ACLA revisions introduced provisional orders for obligation and injunction, offered a somewhat nuanced view. It suggested that while ACLA Article 44 generally barred civil provisional injunctions against the "exercise of public power" if they would effectively render that power impossible (e.g., a complete and long-term halt to a public construction project), it might not entirely prohibit civil injunctions that merely sought to correct the method of exercising public power, ensure its lawful exercise in some limited way, or temporarily stop it for a very brief and defined period, provided the main lawsuit itself (which, in that pre-2004 era, might have been framed differently if not a straightforward revocation suit) was valid.

However, with the introduction of the provisional injunction (kari no sashitome) under ACLA Article 37-5(2), the specific need to resort to general civil provisional remedies for the purpose of preventing anticipated harmful administrative dispositions has been largely obviated. ACLA Article 44 continues to generally preclude using civil provisional remedies as a substitute for the ACLA's own designated provisional relief mechanisms when one is fundamentally challenging actions that qualify as administrative dispositions under the ACLA.

Conclusion

While the initiation of a lawsuit to challenge an administrative action in Japan does not, by itself, halt the effects of that action, the Administrative Case Litigation Act provides crucial mechanisms for obtaining provisional (interim) relief.

  • The stay of execution (shikkō teishi) under ACLA Article 25 is the most established and commonly used tool. It allows a court to temporarily suspend a harmful administrative disposition if the applicant can demonstrate, among other things, that they are likely to suffer "serious harm" and that there is an "urgent necessity" for the stay. The 2004 revisions to the ACLA, which replaced the stricter "irreparable harm" standard with "serious harm," have generally made this remedy somewhat more accessible.
  • For situations where merely suspending an existing disposition is insufficient or not the appropriate remedy—such as when seeking to compel an agency to take an action it has unlawfully refused, or to prevent an agency from making an anticipated harmful disposition—the newer provisional orders for obligation (kari no gimuzuke) and provisional injunctions (kari no sashitome) under ACLA Article 37-5 offer more direct and tailored forms of interim relief. These remedies, however, come with stricter requirements, particularly regarding the demonstration of "irremediable harm" and a higher likelihood of success on the merits of the main lawsuit.

These provisional remedies are essential components of the Japanese administrative justice system. They aim to ensure that a plaintiff's rights are not irreparably damaged during the often considerable time it takes for administrative litigation to reach a final conclusion, thereby making the ultimate prospect of judicial review more meaningful and effective. For businesses facing potentially detrimental administrative actions, understanding and appropriately utilizing these provisional relief mechanisms can be critical.