The Need to Introduce Enforcement Action and Its Legislative Direction

The introduction of enforcement action (action seeking the issuance of an administrative act) has long remained an unresolved issue in the field of administrative law, both in academia and in practice. During discussions on the revision of the Administrative Litigation Act, intense disagreements arose over other major issues, such as the expansion of the scope of the administrative act and standing to sue. Although there was no fundamental opposition to the introduction of enforcement action itself, the amendment process ultimately failed, preventing its legislation. The current stagnant state, with no significant progress, leaves much to be desired. This article examines the rationale for the introduction of enforcement action and reviews the desirable legislative direction by addressing the detailed issues raised during these discussions. The most compelling reason for the introduction of enforcement action is the limitations of the action for annulment of a rejection and the action seeking confirmation of the illegality of an omission. Plaintiffs challenging a rejection or omission ultimately seek a favorable administrative act. However, under the current forms of litigation, it is difficult to achieve effective protection of rights, timely resolution of disputes, and efficiency in litigation. In addition, enforcement action is necessary to establish appropriate provisional remedies against a rejection and omission. The examination of detailed issues leads to the following conclusions: First, even after the introduction of enforcement action, it is necessary to maintain the action for annulment of a rejection, but this is not the case for the action seeking confirmation of the illegality of an omission. Second, the court should issue both an enforcement ruling and an annulment simultaneously to ensure clarity in legal relations. Third, although the reference point for judgment has been a topic of heated debate tied to the nature of enforcement action, this is an issue that is better left to the judiciary after the legislation is enacted, rather than being decided at the legislative stage. Fourth, it is unreasonable to require reasonableness as a condition for issuing an enforcement ruling for specific decision, and it should be possible to issue an enforcement ruling for mandatory decisions. Fifth, for the purpose of introducing enforcement action to be fully realized, courts should recognize enhanced judicial responsibilities and investigate the facts of cases more actively than they do at present. In conclusion, I would like to emphasize that, despite disagreements over the details, it is better to have enforcement action than not to have it. These disagreements are secondary to the overarching need for its introduction.