REVIEW AND REMEDIES
1. The Scope of Review
A. Adversary system supplemented by inquisitorial power
In administrative litigation, who is in charge of the inquiry into important facts based on which the court must make a judgment? Section 26 of the Act provides that �if the court finds that it is necessary, the court has power to investigate evidence on its own initiative and decide on the facts which the parties to the lawsuit have not argued.’ The provision itself shows that Congress adopted an inquisitorial system, where the court or a part of the court is actively involved in determining the facts of the case, as opposed to an adversarial system, where the role of the court is solely that of an impartial referee between parties.
The courts, however, have understated the inquisitorial power under the provision. That is, they have stated that the provision should not be interpreted to allow judges to make limitless factual inquiries when the parties did not argue such facts. Courts can inquire and consider the facts which are revealed on the adjudication record but are not expressly argued by the parties.[452] In the context of administrative litigation, the underlying formulation is the adverÂsary system which is merely supplemented by inquisitorial powers of a judge in cases of necessity.
B. Scope of review and administrative discretion
Section 27 of the Act provides that â€?courts have the power to quash an adminÂistrative disposition when it exceeds discretionary power or there is an abuse of discretionary power.’ The provision confirms the judicial power to control administrative discretion, but it keeps silent about the extent of its inquiry into the merits of the challenged agency action.
The courts have formulated a two-prong standard for scope of review. One is for non-discretionary (or rule-bounded) decisions and the other is for discreÂtionary decisions.
The distinction between rule-bounded decisions and discreÂtionary decisions should be made based on comprehensive considerations of the context, form, and text of legal provisions regulating the decision, the main policy goals and characteristics of the area of administration, and distinguishÂing qualities of the specific decision. For rule-bounded administrative deciÂsions, courts draw their own decision on the basis of facts discovered and the interpretation and application of the related legal rules, and substitute their own decision for the original decision. In the case of a discretionary decision, courts are not allowed to replace the agency’s decision with their own decision because the agency has the power to decide independently the issue of public interest. The courts scrutinize whether there was factual error, violation of prinÂciple of proportionality and equality, breach of purpose, or improper motive.[453]C. Procedural violations
There have been controversies about whether an administrative disposition with some procedural violations is unlawful when there are no corresponding substantive violations. However, as the enactment of the Administrative Procedure Act in 1996 demonstrates, the administrative procedure has been increasingly recognized as an essential element for the rule of law. Courts have also confirmed that the procedural violations that taint administrative decisions enough to warrant invalidation may involve a prior notice, hearing and comment or the provision of reasons for the decisions. A disposition with a procedural violation is void or voidable depending on whether such an illegality is serious and clear. If it is not, the disposition can be invalidated only through revocaÂtion litigation within the time-limit. Courts seem to treat most administrative decisions with procedural violations as just voidable.
2. Remedies
If an administrative court finds that an administrative disposition is illegal at the time of issuance, the court will quash it.
It declares the administrative deciÂsion retrospectively void from the time of issuance against anyone. The judgÂment to quash an administrative decision is legally binding on the administrative agency and other related agencies. Further, the agencies should not repeat the same decision under the same factual situations against the same parties. If the legal ground for quashing is a procedural violation, the court can issue the same disposition after executing the required procedure.Under the Act, the only judicial remedy for the refusal to exercise public power is to rescind the disposition of â€?refusal.’ To make the judgment more remedially effective, the Act prescribes that upon rescission, the agency is obliged to issue a new disposition to the previous request according to the intention of such a judgment.[454] When the agency does not meet this obligaÂtion, a requesting party can seek from the first instance court an order for repaÂration for any loss caused by the delay.[455]
The prescribed remedy for administrative inaction under the Act is a declaratory judgment that it is illegal not to reply properly. Upon such a judgÂment, the relevant agency has to make a decision and issue a disposition. Because it is not an effective remedy, there are few cases involving this form of action.[456]
Once a court has decided an issue of fact or law necessary to its judgment, the decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation. Res judicata applies only to the parties to the prior litigation.
Settlement or mediation of administrative litigation is not officially permitÂted. The main reasoning behind this is the defendant agency does not have a right to dispose the issue of â€?legality’ of an administrative activity, which is regarded as the object of the litigation. But in practice, â€?settlement or mediaÂtion in fact’ has been used such that plaintiffs satisfied with the end results have withdrawn their lawsuits.
V.