Deliberation on Requirements
Deliberation on Requirements
- A “deliberation on the requirements” is a deliberation on whether a lawsuit has been lawfully filed in compliance with the requirements for filing of lawsuits. If, as a result of the deliberation on the requirements, the suit is found to be unlawful on the basis that it does not meet the requirements for litigation, it is dismissed without prejudice.
※ When a lawsuit is filed in a court, the court first decides whether to accept the suit that has been filed. This is referred to as an “examination of the requirements”. At this moment, if there are grounds for disqualification in the filing of the lawsuit itself, for example, because the person who has filed the suit has incorrectly designated the defendant as the other party, or there is no practical benefit to the person who has filed the suit even if the suit were to be filed and won, or the suit has been filed in violation of the statutes prescribing the procedures regarding the filing of a lawsuit, then the suit will not be accepted. This is referred to as “dismissal without prejudice”.
- Matters on the requirements subject to deliberation include the subject matter of administrative litigation, the parties’ standing, period for filing lawsuit, and proceedings at the previous instance. These are, as the prerequisite for a judgment on the merits of the case, matters to be investigated ex officio.
- The requirements for filing lawsuits shall be satisfied until the closing of pleadings on the fact-finding proceedings.
- If, as an unlawful suit which has a defect in relation to the requirements for filing lawsuits, such a defect is capable of rectification, then the court may order its rectification ex officio. However, if the defect is not capable of rectification, then the court may dismiss without prejudice the suit by its judgment without holding any pleadings (Article 8 (2) of the Administrative Litigation Act and Article 219 of the Civil Procedure Act).
Deliberation on Merits
Deliberation on Merits
- A “deliberation on the merits” is a deliberation on whether to accept or dismiss the plaintiff’s claim, by deliberating on the substantive details of a lawsuit which, as a result of a deliberation on the requirements, has been deemed lawful.
- If as a result of the deliberation on the merits it is deemed that there are proper grounds for the claim, an acceptance decision is made and, if it is deemed groundless, a dismissal decision is made.
※ If a lawsuit that has been filed in the court is not dismissed without prejudice and is accepted following a deliberation on the requirements, it enters the phase involving a deliberation on the merits. The trial begins on commencing deliberation on the merits, and at this moment the person who has filed the suit becomes the plaintiff, and the person against whom the suit has been filed becomes the defendant. The acceptance, through the trial process, of the plaintiff’s claim is referred to as “acceptance” and conversely, not accepting the plaintiff's claim is referred to as “dismissal”.
Scope of Deliberation
Matters of Law and Matters of Fact
- In deliberating an administrative case, the court deliberates not only on the matters of law relating to the disposition subject to the lawsuit, but also on the matters of fact.
- However, as an exception, in limited administrative areas where a high level of specialist or technical expertise is required, if the administrative agency's determination is accepted in the findings of fact, then the court’s deliberation in this regard may be restricted.
Deliberation on Discretionary Acts
- A disposition which falls within the administrative agency's discretion may, if it exceeds the discretionary authority or there is an abuse of such authority, be subject to administrative litigation. Therefore, if as a result of deliberation the discretionary authority has been exceeded or there is an abuse of such authority, then the court may revoke this (Article 27 of the Administrative Litigation Act).
· However, if the decision is that the disposition is limited to being unjust, then the claim is dismissed.
Principle of ‘No Judge Without Plaintiff’ and its Exceptions
- In the deliberation of an administrative lawsuit, the principle of ‘no judge without plaintiff’ applies as it does in a civil lawsuit (Article 8 (2) of the Administrative Litigation Act and Article 248 of the Civil Procedure Act).
※ The "principle of ‘no judge without plaintiff’" is a principle that the court may not try a case without the filing of a lawsuit, or deliberate or make a determination on a case by going beyond the scope of the parties' claims.
- However, the court may, when it deems it necessary, exceptionally examine the evidence ex officio, and make a determination as to the facts not asserted by a party (Article 26 of the Administrative Litigation Act).
Principles of Deliberation
Principle of Disposition
- In administrative litigation, the principle of disposition, in which the filing and the conclusion of a lawsuit, and the subject matter of adjudication, is decided in accordance with the parties’ intentions, applies in principle (Article 8 (2) of the Administrative Litigation Act and Article 203 of the Civil Procedure Act).
· Therefore, the court may not deliberate and pass a judgment on a case in respect of which there has been no filing of a lawsuit by the plaintiff, and may not deliberate on or try a case, even if there has been a filing of a lawsuit in respect of it, by going beyond the scope of the plaintiff's claim (
Supreme Court Decision, April 28, 1995, 95 Nu 627).
Principle of Pleading and Principle of
Ex Officio Investigation
- As in civil litigation, the principle of pleading also applies in principle in administrative litigation.
· The “principle of pleading” is a principle of deliberation that the responsibility for gathering and submitting the litigation material - in other words, the facts and the evidence - shall be given to the parties, and that only the litigation material gathered by the parties and submitted in the pleadings may form the basis of trial.
- However, in accordance with the public interest function served by administrative litigation, the Administrative Litigation Act prescribes exceptions to the principle of pleading.
· In other words, the court may, when it deems it necessary, examine the evidence ex officio, and make a determination as to the facts not asserted by a party (Article 26 of the Administrative Litigation Act).
Other Principles of Deliberation
- Other than the above, general principles regarding deliberation apply, such as the principle of open deliberation and the principle of oral hearings.
Examination of Evidence
Burden of Assertion
- The “burden of assertion” is the risk or detriment that, unless an assertion is made as to the required facts or the material facts needed for the determination of a legal effect, in the form of the creation or extinction of rights, the creation of an advantageous legal effect would not be recognized.
- In the court proceedings the plaintiff may raise a method of offense and defense not argued in the administrative appeal proceedings, and the court may deliberate on it to determine the lawfulness of an administrative disposition (
Supreme Court Decision, February 14, 1989, 88 Nu 7293).
- On the other hand, the defendant administrative agency may only make arguments as to the grounds for the disposition, by adding or modifying a new ground for the disposition to the extent that the basic facts remain the same as under the initial ground for the disposition (
Supreme Court Decision, December 9, 1989, 88 Nu 9299).
Burden of Proof
- The “burden of proof” is the risk or detriment that, unless a party proves the existence and truth of the facts that are advantageous to that party or submits material at a trial, the facts asserted by that party would be treated as if they did not exist.
- The burden of proof in a suit for revocation is the same as that in a civil litigation (Article 8 (2) of the Administrative Litigation Act).
· The burden of proving the existence of the required facts in respect of a provision on an exercise of authority falls on the person asserting that exercise of authority (
Supreme Court Decision, July 25, 1997, 96 Da 39301). Therefore, in relation to a positive disposition it is the disposing administrative agency, and in relation to a disposition involving refusal it is the plaintiff, who each bears the burden of proof.
· The burden of proving the existence of the required facts in respect of a provision on a non-exercise of authority or a provision on its loss falls on the person asserting that non-exercise of authority or loss. Therefore, in relation to a positive disposition it is the plaintiff, and in relation to a disposition involving refusal it is the defendant, who each bears the burden of proof.
- In a suit for affirmation of illegality of omission, since only the person who has applied for a certain disposition has standing to sue, the burden of proving that an application for a certain disposition has been made falls on the plaintiff, and the burden of proving the ground which would justify the passage of a reasonable period of time falls on the relevant administrative agency.