Which Governmental Actions in Japan Qualify as a "Disposition" (Shobun) Subject to Judicial Challenge?

Japanese Attorney at Law - Bengoshi L.L.

• 12 min read

When a business or individual in Japan believes they have been wronged by a governmental action, seeking judicial review is a primary avenue for redress. The main pathway for this is typically through "appeal litigation" (kōkoku soshō), most commonly a revocation lawsuit (torikeshi soshō), as prescribed by the Administrative Case Litigation Act (ACLA). However, a crucial threshold requirement for initiating such a lawsuit is that the governmental action in question must qualify as an "administrative disposition" (gyōsei shobun). Understanding what constitutes a shobun—often translated as "disposition," "administrative act," or "final agency action"—is therefore fundamental for anyone considering a legal challenge against a governmental decision. This article explores the concept of shobunsei (the quality of being a shobun) and examines how Japanese courts have interpreted it across a variety of governmental actions.

What is an "Administrative Disposition" (Gyōsei Shobun)? The General Definition

The term "administrative disposition" is central to Japanese administrative law, as it defines the types of governmental actions that are subject to direct judicial review through appeal litigation. The ACLA itself, in Article 3, Paragraph 2, refers to "a disposition by an administrative agency or any other act of public authority."

A foundational judicial interpretation of what constitutes a "disposition by an administrative agency" was provided by the Supreme Court in the Tokyo Waste Incineration Plant Installation Case (October 29, 1964; related to case 5-1 in some casebooks). While interpreting an older statute, its definition remains influential: an administrative disposition is an act by the state or a local public entity, performed in its capacity as a wielder of public power, which directly forms or determines the scope of the rights and duties of citizens as specifically recognized by law.

Key elements derived from this and subsequent jurisprudence include:

  1. Exercise of Public Power: The act must stem from the government's position of authority, not from its activities as a private entity (e.g., entering into ordinary commercial contracts).
  2. Direct Legal Effect: The act must directly create, alter, extinguish, or authoritatively confirm the legal rights or duties of specific individuals or entities. Mere factual consequences or indirect effects are generally insufficient.
  3. External Effect: The act must be directed externally towards citizens or specific entities, rather than being a purely internal administrative matter.

This definition helps distinguish reviewable "dispositions" from other types of governmental activity that are generally not directly challengeable through revocation lawsuits, such as:

  • Purely factual acts (jijitsu kōi) that do not, in themselves, alter legal relationships (though they might lead to a disposition or be part of one).
  • Internal administrative acts (naibu kōi) that only affect the internal workings of the administration and do not directly impact the rights of the public.
  • Abstract rule-making, such as the enactment of general laws or regulations (though, as we will see, some specific types of rule-making or general designations can acquire shobunsei).
  • Private law activities of government bodies, like ordinary commercial contracts for goods or services.

Analyzing Shobunsei in Various Contexts: A Spectrum of Governmental Actions

The determination of shobunsei is highly context-dependent and has been the subject of extensive judicial interpretation. Courts look beyond the mere label or form of a governmental act to its actual substance and legal effect within the specific statutory and regulatory framework.

A. Private Law Acts vs. Public Law Dispositions

Government entities engage in both public law (authoritative) and private law (contractual, proprietary) activities. Only the former, when they meet the criteria, are dispositions.

  • The Supreme Court decision of July 12, 1960 (related to case 16-1), concerning the sale of "ordinary national property" (property not directly used for public administrative purposes), held that such a sale is essentially a private law transaction (a sale contract), not an administrative disposition. This remains true even if the administrative process involves an "application" and a "permission" to purchase, as these are seen as formalities for a private law act.
  • Conversely, in a Supreme Court (Grand Bench) decision of July 15, 1970 (related to case 16-1[A]), the rejection by a government deposit official of a request for the return of deposited property was found to be an administrative disposition. Although the underlying deposit relationship might have private law aspects, the Court emphasized that the relevant statutes provided a specific administrative appeal route against such a rejection. This statutory framework indicated a public law character for the official's decision, making it a reviewable disposition rather than merely a private law refusal to perform a contractual obligation.

Many governmental communications or preliminary actions do not, in themselves, create or alter legal rights and thus lack shobunsei.

  • A notification from the police to pay a traffic hansokukin (an administrative non-penal fine for minor traffic violations) (Supreme Court, July 15, 1982; related to case 16-2) was held not to be a disposition. The notice does not create a legally enforceable duty to pay; if the individual chooses not to pay, the matter may proceed to formal criminal (or quasi-criminal) proceedings where the facts of the violation are adjudicated. The notice itself doesn't finalize the legal consequences.
  • The refusal by a public facility manager (e.g., a city mayor responsible for local roads and sewers) to give consent required under Article 32 of the Urban Planning Act as a precondition for a developer to apply for a development permit (Supreme Court, March 23, 1995 – the Morioka City Development Permit Case; related to case 16-3) was found not to be a disposition. The Court reasoned that the applicant does not yet possess a legal right to develop, and the refusal of this preliminary consent, while a practical obstacle, does not directly infringe upon an existing legal right or status of the applicant. Rather, it signifies the failure to meet one of the statutory prerequisites for a future permit application. (This remains a point of contention, as such refusals can effectively halt projects.)
  • A fact-finding adjudication by a Maritime Accident Inquiry Tribunal that merely clarifies the cause of a maritime accident but does not impose any legal duties or restrict any rights (Supreme Court (Grand Bench), March 15, 1961; related to case 16-3[A]) also lacks shobunsei.

The label given to a governmental act ("notification," "recommendation," "guidance") is not determinative of its shobunsei. If such an act, despite its ostensibly non-binding form, directly creates a legal change, imposes a legal duty, or creates a legal barrier for a specific party, courts may find it to be a reviewable disposition.

  • Customs and Quarantine Notifications:
    • In the Yokohama Customs Case (Supreme Court, December 25, 1979; related to case 16-4), a notification by a customs chief that certain imported goods (in this case, a photo book) were deemed "harmful to public morals" and therefore constituted import-prohibited items under the Customs Tariff Act was held to be a disposition. Even though it was framed as a "notification of opinion" (kannen no tsūchi), it effectively closed the path to lawfully importing the goods, thus directly affecting the importer's legal position. (A subsequent Supreme Court decision on December 12, 1984, refined this, characterizing such a notification more as a substantive refusal of import permission).
    • Similarly, in the Frozen Smoked Tuna Case (Supreme Court, April 26, 2004; related to case 16-5), a notification by a quarantine station chief that imported food products were found to be in violation of the Food Sanitation Act was held to be a disposition. This was because such a finding would prevent the issuance of an import declaration certificate, which, under the interconnected legal scheme of the Food Sanitation Act and the Customs Act, is necessary for obtaining customs clearance and lawfully importing the goods. The notification, therefore, had a direct legal effect on the importer's ability to proceed.
  • Notification of Refusal to Issue a Registration Tax Refund Notice (Supreme Court, April 14, 2005; related to case 16-6): Under the Registration Tax Act, there's a simplified procedure for taxpayers to obtain refunds for overpaid registration tax. This involves the registry office issuing a "refund notice" to the tax office. A registry office's notification to an applicant that it would not issue such a refund notice was deemed a disposition. The Supreme Court reasoned that this refusal denied the applicant the legally recognized procedural status and benefit of being able to utilize this simplified refund pathway.
  • Notification under the Soil Contamination Countermeasures Act (Supreme Court, February 3, 2012 – the Asahikawa City Dry Cleaner Closure Notification Case; related to case 16-6[A]): A notification issued to a landowner under this Act, which formally obliges them to conduct a soil contamination investigation and report the results to the authorities (with statutory penalties for non-compliance), was held to be a disposition. The Court found that such a notification directly creates a new legal duty on the landowner.
  • Recommendations with De Facto Coercive Power – The Toyama Prefecture Hospital Establishment Suspension Recommendation Case (Supreme Court, July 15, 2005; related to case 16-7): This is a particularly significant case. A prefectural governor issued a "recommendation" to a medical corporation to suspend its plans to open a new hospital. Under the Medical Care Act, such a recommendation was formally framed as administrative guidance (non-binding). However, the Supreme Court found it to be a reviewable disposition. The crucial factor was that non-compliance with this "recommendation" would, with a very high degree of certainty, lead to the denial of designation as an "insurance medical institution" under the separate Health Insurance Act. Without such designation, a hospital in Japan is practically unable to operate viably, as most patients rely on health insurance. The Court looked beyond the formal label of "recommendation" to its practical and unavoidable coercive effect within the broader regulatory scheme, concluding it directly and adversely determined the applicant's ability to establish and run a hospital.

D. General Plans, Designations, and Ordinances

Generally, abstract rule-making (like the enactment of a broadly applicable law) is not considered a disposition. However, governmental acts that, while general in form, apply rules to specific properties or to limited, identifiable groups in a way that directly alters their legal rights or status can possess shobunsei.

  • En Bloc Designation of "Two-Meter Roads" (Supreme Court, January 17, 2002 – the Gosho Town Two-Meter Road Designation Case; related to case 16-8): A public notice (kokuji) by a prefectural governor that designated all existing narrow roads meeting certain criteria within a wide area as "two-meter roads" under the Building Standards Act was held to be a disposition. Although the designation was made "en bloc" rather than road-by-road, it had the direct legal effect of imposing specific building restrictions (e.g., setback requirements) on all properties abutting these newly designated roads. This direct impact on individual property rights was key.
  • Ordinances:
    • An ordinance generally revising water fees for all users of a town's simple water supply system was held not to be a disposition in the Takane Town Villa Area Case (Supreme Court, July 14, 2006; related to case 16-9). The Court reasoned that such an ordinance applies generally to an unspecified number of users and is not equivalent to an administrative agency's act of enforcing law against specific individuals in a concrete case. (It's important to note, however, that the discriminatory aspect of the fee structure set by this ordinance was separately challenged and found void in a civil lawsuit concerning the payment obligation.)
    • Conversely, an ordinance that specifically ordered the abolition of certain named municipal daycare centers was found to be a disposition in the Yokohama City Daycare Privatization Case (Supreme Court, November 26, 2009; related to case 16-10). The Court emphasized that this ordinance was not a general rule but a specific measure that directly and immediately divested a limited and identifiable group of current users (children and their parents) of their established legal status and expectation to continue receiving care at those particular centers. This direct impact on a specific group's existing legal position made the ordinance-making act "substantially equivalent to a disposition by an administrative agency." The Court also noted that allowing a revocation suit (with its third-party effect) was a more reasonable and effective means of dispute resolution in such a case compared to multiple individual lawsuits.

E. Internal Administrative Acts (Naibu Kōi)

Actions that are purely internal to the administrative structure and do not, in themselves, directly affect the legal rights or duties of the public generally lack shobunsei.

  • A Ministry circular (tsūtatsu) providing an interpretation of a law to subordinate administrative agencies (Supreme Court, December 24, 1968 – the Cemetery and Burial Act Circular Case; related to case 16-11) was held not to be a disposition. Such circulars are internal directives and do not directly bind the public or create legally enforceable rights or obligations for them.
  • A Fire Chief's consent (or refusal thereof) given to a Prefectural Governor concerning a building permit application (Supreme Court, January 29, 1959; related to case 16-12) was deemed an internal matter between administrative organs. It does not directly affect the applicant's rights; the applicant should instead challenge the Governor's final decision on the building permit itself.
  • Similarly, a supervising Minister's approval of a construction plan submitted by a special public corporation (e.g., for the Narita Shinkansen project) (Supreme Court, December 8, 1978; related to case 16-13) was treated as an internal supervisory act between governmental entities, not a disposition directly reviewable by affected citizens at that stage.

F. Intermediate Acts in a Multi-Stage Administrative Process

Administrative processes often involve several stages. Whether an intermediate act in such a process has shobunsei has been a subject of significant judicial evolution, particularly concerning urban planning and land readjustment.

  • Land Readjustment Project Plans:
    • The traditional view, established in the "Blueprint" Judgment (Supreme Court (Grand Bench), February 23, 1966; related to case 16-14), was that a land readjustment project plan, even when publicly announced, was merely a preparatory "blueprint" for future, more concrete administrative actions (like the final re-allotment of land plots). At the plan-approval stage, it was considered to lack the finality and direct legal effect on individual rights necessary for shobunsei; any challenge was deemed premature.
    • This long-standing precedent was overturned by the Hamamatsu City Land Readjustment Project Case (Supreme Court (Grand Bench), September 10, 2008; related to case 16-15). The Court held that the formal decision (and public announcement) of a municipal land readjustment project plan is a reviewable disposition. The reasoning was that such a plan, once decided and announced, immediately subjects landowners within the designated project area to specific legal restrictions (e.g., on construction or alteration of their property). Furthermore, it formally places them into a legal process that will culminate in the re-allotment of their land (kanchi shobun). The Court recognized that this has a direct and significant effect on their legal status from an early stage. Crucially, it also reasoned that allowing a legal challenge at this plan-approval stage is more conducive to effective rights protection than forcing landowners to wait until the final land re-allotment stage, by which time substantial physical changes may have occurred, making any remedy difficult or merely financial (via a "judgment affirming illegality but dismissing claim on public interest grounds" - ACLA Art. 31).
  • General Zoning Designations:
    • In contrast to the evolving view on land readjustment plans, a prefectural governor's decision designating a wide area as, for example, an "industrial zone" under the City Planning Act (Supreme Court, April 22, 1982 – the Morioka Zoning Designation Case; related to case 16-16) was held not to be a disposition. The Court likened such a general zoning designation, which imposes broadly applicable building use restrictions on an unspecified number of properties within that zone, to the enactment of general legislation. It reasoned that affected parties could later challenge specific administrative actions that applied this zoning to them (e.g., a denial of a building permit for a residential structure in an area zoned industrial).

G. Responses to Applications or Requests

Decisions made by administrative agencies in response to formal applications for permits, licenses, benefits, or other approvals are classic examples of administrative dispositions.

  • A decision by a Labor Standards Inspection Office chief not to pay "study support expenses" (a benefit provided for under internal administrative guidelines but interpreted by the Court as being integrated with and supplementing the statutory workers' compensation insurance scheme) was held to be a disposition (Supreme Court, September 4, 2003; related to case 16-17). The Court found that this decision directly affected the applicant's legal position concerning their entitlement to the benefit.
  • However, a ward mayor's informal response declining a citizen's request to make an entry in a child's resident record (where the formal birth notification itself had not been accepted due to missing information) was held not to be a disposition (Supreme Court, April 17, 2009; related to case 16-18). The Court distinguished this from a decision on a formal application based on a specific legal right. The citizen's request was viewed merely as urging the mayor to exercise an existing ex officio power to make entries, not as an application that triggered a legal duty to issue a formal, reviewable disposition in response to that specific type of informal request.

The body of case law on shobunsei reveals a gradual evolution in judicial thinking. While the core definition focusing on the direct alteration of legal rights and duties remains, there has been a discernible trend away from overly formalistic interpretations towards a more functional approach. Courts increasingly look at the actual legal impact of a governmental act on the individual or business and the practical availability of effective and timely remedies.

Cases like the Hamamatsu City land readjustment plan decision and the Toyama Hospital Recommendation case are prime examples. In these decisions, the Supreme Court expanded the concept of shobunsei to encompass acts that, while perhaps not fitting a narrow, traditional definition of a "disposition," nonetheless had direct and significant legal consequences for the affected parties or created substantial legal uncertainty that could only be effectively resolved by allowing an early judicial challenge. This trend reflects a greater emphasis on providing meaningful and timely judicial protection.

Conclusion

Determining whether a specific governmental action in Japan constitutes a reviewable "administrative disposition" (shobun) is a critical first step for any business or individual contemplating a legal challenge through appeal litigation under the ACLA. It requires a careful analysis of whether the act in question, performed under public authority, directly creates, alters, or authoritatively confirms the legal rights and duties of specific persons or entities in a way that is final enough to warrant judicial intervention.

Courts in Japan look beyond mere labels ("notification," "recommendation," "plan," "ordinance") to the substantive legal effects of the act within its specific statutory and regulatory context. While purely internal administrative acts, abstract rules without direct application, or governmental actions lacking immediate legal effect on citizen rights are generally not considered dispositions, the judiciary has demonstrated an increasing willingness to find shobunsei in a broader range of governmental actions. This is particularly true if those actions effectively determine legal positions, create significant legal barriers, or place individuals into an irreversible legal process, especially when recognizing shobunsei is deemed necessary to provide meaningful, effective, and timely judicial protection against potentially unlawful administrative conduct.