행정지도의 한계 및 권리구제

Grenze der Leitungsverwaltung(Administrative Guidance) und Rechtsschutz

Administrative guidance (行政指導) is a Japanese government practice defined under Article 2 of the Administrative Procedure Act of 1993 as “guidance, recommendations, advice, or other acts by which an Administrative Organ may seek, within the scope of its duties or affairs under its jurisdiction, certain action or inaction on the part of specified persons in order to realize administrative aims, where such acts are not Dispositions.” Historically, the government of Japan employed this practice in imposing its policies on individuals and organizations, implying poorer treatment for those who failed to comply with its non-binding advice. Administrative guidance is a request for voluntary cooperation, given by an administrative body and directed at an individual, association, or other juristic person. The administrative body may be any government ministry or agency. It is of little import who in the agency actually does the guiding or to whom in the company the guidance is given. Although arguments can be made that the higher ranking the official on either side the more important the guidance, any guidance that bears the agency's imprimatur, no matter who delivers it, is expected to be treated with equal deference by the receiving party. Government agencies usually guide informally and orally rather than by committing anything to paper or summoning the party to the agency. Sometimes a party is told specifically the actions it should take, and other times only a general outline is drawn, and the party is left to fill in the details.