What is Administrative Execution Penalty?

The fossil of 'pre-war administrative coercion' remaining in Article 36 of the Sabo Act, and the problems with Japanese national examinations

When studying administrative law, there is a term that always appears.

Administrative execution penalty.

However, there are few systems that appear as frequently on exams as this term, yet whose reality is so difficult to see.

In textbooks, it is generally explained as follows:

'A system that psychologically coerces compliance with administrative obligations by giving notice of a non-penal fine.'

And for exam preparation, you are made to memorize it like this:

The current representative example is Article 36 of the Sabo Act.

Many people stop here.

However, what is truly important is what lies beyond that.

Why, despite being asked about on exams, is it that in reality, only Article 36 of the Sabo Act remains?

Why is it considered that it cannot be freely created by local ordinances?

Why does it remain like a fragment of the past only in the old Sabo Act, enacted in 1897?

Why was the system that existed within the Administrative Execution Act before the war not retained as a general system after the war?

Unless you look at this, the true meaning of administrative execution penalty will not become clear.

Administrative execution penalty is not merely a memorization item for administrative law.

Strong pre-war administrative authority and post-war constitutional human rights guarantees are a small fossil left at the place where they collide.

Administrative execution penalty is not a 'penalty'

First of all, administrative execution penalty has the word 'penalty' in its name, but it is different from criminal punishment.

Criminal punishment is a sanction for past criminal acts.

Administrative penalties are also, fundamentally, sanctions for past violations of obligations.

However, administrative execution penalties are different.

Administrative execution penalties have the purpose of compelling the fulfillment of administrative obligations for the future.

For example, suppose the administration orders a person to "do this" or "stop doing this."

The person does not comply.

So the administration,

"If you do not fulfill this by the deadline, we will impose a fine."

warns them.

If they still do not fulfill it, a fine is imposed.

If they still do not fulfill it, they are pressured to fulfill it again.

In other words, an administrative execution penalty is a system where the administration applies financial pressure to force the obligated party to fulfill their duty.

Here lies a sense of discomfort from the perspective of modern law.

The courts do not, but rather the administration judges the non-fulfillment of obligations, warns of financial burdens, and psychologically pressures them.

This is a fairly strong authority.

That is precisely why it is not a system used lightly in modern administration.

There was an Administrative Execution Act before the war

To understand administrative execution penalties, it is necessary to look at the pre-war Administrative Execution Act.

In pre-war Japan, there was a law called the Administrative Execution Act.

This law was the general enabling act for forcibly realizing administrative obligations.

Under the Administrative Execution Act,

・Administrative Proxy Execution
・Administrative Penalty
・Direct Coercion

Such coercive measures were prepared as a system.

In the modern sense, there is a strong sense of caution regarding the administrationusing force or applying financial pressure on citizens without going through the courts.

However, it was different before the war.

The administration was the entity that realized public interest, and it was easily taken for granted that the administration itself would forcibly realize it against those who did not follow administrative orders.

In other words,

The administration decides.
The administration orders.
The administration executes.

These three were in quite close proximity.

The pre-war Administrative Execution Act was a law that supported exactly that kind of administration-first thinking.

The Ministry of Home Affairs, which used the Administrative Execution Act, was also abolished.

What must not be forgotten here is that the Administrative Execution Act did not exist in isolation.

At the center of actually using the pre-war Administrative Execution Act and carrying out administrative coercion was a massive government agency called the Ministry of Home Affairs.

The Ministry of Home Affairs was a huge administrative organization that broadly oversaw police, local administration, elections, civil engineering, and sanitation, and held control over pre-war Japanese domestic affairs.

In today's terms, it would be like combining the Ministry of Internal Affairs and Communications, the National Police Agency, parts of the Ministry of Land, Infrastructure, Transport and Tourism, and parts of the Ministry of Health, Labour and Welfare.

The Administrative Execution Act was also a tool that legally supported that Ministry of Home Affairs-style governance.

The administration issues orders based on public interest or the maintenance of order.

Against those who do not comply, the administration itself uses coercion.

Realization of administrative objectives is prioritized over the freedom of citizens easily.

That way of thinking is symbolic of the strong administrative state before the war.

However, after the war, the Constitution of Japan shifted significantly toward binding state power and protecting the rights of citizens.

Among them, the Ministry of Home Affairs was abolished.

And, the Administrative Execution Act was also abolished.

This was not merely a reorganization of government agencies or a consolidation of laws.

It means that in pre-war Japan, the massive administrative apparatus that stood on the side of controlling the people from above, and the laws that granted that apparatus coercive power, were both rejected in the same flow of post-war reform.

Therefore, when learning about administrative execution penalties or direct coercion, it is not enough to simply memorize that 'such systems existed in the past'.

They were systems that were integrated with the strong administrative authority of the Ministry of Home Affairs type.

And after the war, both that Ministry of Home Affairs and the Administrative Execution Act were abolished.

Based on this history, we can see why administrative execution penalties currently remain only in old laws such as Article 36 of the Sabo Act.

Administrative execution penalties are not standard equipment for modern administration.

Pre-war type administrative coercion is an echo.

After the war, only the Administrative Proxy Execution Act remained as a general law

After the war, the Administrative Execution Act was abolished.

And what was left as a general law is the Administrative Proxy Execution Act.

However, this is important.

What was left after the war was not all administrative coercive measures.

What was left as a general law was basically proxy execution.

Proxy execution is a system where, if an obligor fails to perform an act they are supposed to do, the administration performs it on their behalf and collects the costs from the obligor.

For example, in a situation where an order to remove an illegal building is not followed, the administration has a contractor remove it and charges the cost.

Proxy execution is suitable for acts that the administration can perform on behalf of others.

In contrast, administrative execution penalties are different.

Administrative execution penalty is a system that compels an individual to fulfill an obligation through financial pressure.

Direct enforcement is even stronger; it is a system where the administration directly applies force to an individual or property to realize an obligation.

After the war, administrative execution penalty and direct enforcement were not retained as general systems within the Administrative Proxy Execution Act.

Herein lies the philosophy of postwar law.

To restrict administrative enforcement authority as much as possible.

To generally not permit direct intervention into the bodies or property of citizens.

When necessary, to clearly establish a basis in individual laws.

This is a way of thinking that is consistent with postwar constitutional human rights guarantees.

Article 36 of the Sabo Act is a foreign object remaining in the strata of the Meiji era.

Then, why is administrative execution penalty still discussed today?

The answer to that is Article 36 of the Sabo Act.

The Sabo Act is an old law enacted in 1897.

1897, in other words, 1897.

The Administrative Execution Act was enacted in 1900, so the Sabo Act is even older than the Administrative Execution Act.

Article 36 of the Sabo Act contains a provision to the effect that a person who does not fulfill a certain obligation can be ordered to fulfill it, with a warning that they will be subject to a non-penal fine if they do not fulfill it within a specified deadline.

This is a representative example of administrative execution penalty that remains today.

However, what we should consider here is that just because Article 36 of the Sabo Act exists, it does not mean that administrative execution penalty is appropriate for modern administration.

It is actually the opposite.

Article 36 of the Sabo Act is closer to a historical foreign object that retains the atmosphere of the administrative legal system of the Meiji era.

If the system of administrative execution penalty were at the center of modern administration, it should exist in many more laws.

However, in reality, it hardly exists.

This is because administrative execution fines are incompatible with modern concepts of human rights protection and due process.

Creating new administrative execution fines is extremely difficult.

Even now, it is theoretically possible to institutionalize administrative execution fines if a clear legal basis is established.

However, in reality, it would be extremely difficult.

The reason is clear.

Administrative execution fines are a system where the administration uses financial pressure to compel an obligor.

Moreover, there is a possibility of repeatedly applying pressure until the obligation is fulfilled.

This is different from sanctions for past violations.

It is a system where the administration continues to apply pressure until the obligation is fulfilled.

Under the modern constitutional order, the administration would need to provide an extremely careful explanation to introduce such a system anew.

Is it truly necessary?

Administrative vicarious execution is not enough?

Administrative penalties are not enough?

Are other means such as orders, recommendations, public announcements, revocation of permits, or suspension of subsidies not enough?

Does it not violate the principle of proportionality?

Are prior procedures and appeals sufficient?

Are there mechanisms to prevent administrative abuse?

All these points must be explained.

Therefore, the new introduction of administrative execution fines should be viewed as very difficult politically and legally, even if it is possible institutionally.

Rather, it would not be surprising if the provisions of Article 36 of the Sabo Act were also reorganized someday.

Direct coercion also has the same problem.

Administrative Execution Act era, direct coercion was also positioned as a general means of enforcement.

Direct coercion is a system in which the administration directly exerts physical force on the bodies or property of citizens to fulfill obligations.

This is the exercise of physical force by state power itself.

It is natural that direct coercion was not left as a general law after the war.

The Constitution of Japan is a constitution designed to bind state power.

It is a constitution intended to put a check on the authority of the government.

Under that constitution, it is too dangerous to leave a system that allows the administration to widely perform direct coercion as a general law.

Therefore, direct coercion has come to be treated as an exceptional system with a clear basis in individual laws.

A famous example when considering post-war direct coercion is the Narita New Act.

It was a law created amidst intense conflict over Narita Airport, and it recognized strong administrative powers such as the prohibition of the use of structures and blockades.

The Supreme Court did not immediately declare the Narita New Act unconstitutional.

However, that does not mean that this system was a desirable model.

Rather, the Narita New Act is an exceptional law created in an abnormal situation of conflict.

And that exceptional law created deep conflict and distrust in society.

What we should learn from this is that direct coercion should not be used lightly.

The administration says it is for the "public interest" and directly restricts the rights of residents.

That may look quick and efficient at first glance.

However, strong administrative power creates strong backlash and distrust.

The reason why postwar law abolished the Administrative Execution Act and left only the Administrative Proxy Execution Act as a general law lies here.

Why is the administrative execution penalty frequently asked about on exams?

Here, there is a simple question that those studying administrative law often have.

Administrative execution penalties currently remain only in places like Article 36 of the Sabo Act.

It is not a system frequently used in actual administrative practice.

Even so, why is it asked about so much on exams?

The reason is simple.

Administrative execution penalties are convenient for creating trick questions.

Proxy execution and administrative execution penalties—are you confusing them?

Administrative penalties and administrative execution penalties—are you confusing them?

Non-penal fines as administrative order penalties, and non-penal fines as administrative execution penalties—are you confusing them?

Ordinances being able to stipulate non-penal fines versus ordinances being able to freely create administrative execution penalties—are you confusing these?

Legal basis—do you understand that this is required?

To create such classification questions, administrative execution penalties are very convenient.

However, here lies a bad habit of Japanese national exams.

What is important is not actually that.

What should really be asked is why administrative execution penalties hardly remain in the modern era.

Why did they exist in the prewar Administrative Execution Act?

Why was the Administrative Execution Act abolished after the war?

Why did the Administrative Proxy Execution Act leave only proxy execution as a general system, and not administrative execution penalties or direct coercion as general systems?

Why is the only representative example left in an old law like the Sabo Act enacted in 1897?

Unless you ask this question, the meaning of studying administrative execution penalties is reduced by more than half.

National examinations should exist to cultivate people.

National examinations should fundamentally exist to select and cultivate human resources useful to society.

Of course, the function of selecting successful candidates is necessary.

However, that is not the only meaning of national examinations.

Examinees study according to the content asked in the exam.

In other words, what is asked in the exam has a major impact on the ability formation of all examinees.

It is not just the successful candidates.

Unsuccessful candidates also acquire legal knowledge through exam preparation.

That is precisely why national examinations should be something that enhances the legal capabilities of society as a whole, including not only successful candidates but also unsuccessful ones.

From that perspective, there is a question regarding the way exams continue to use administrative execution penalties as material for trick questions.

They present a system that is hardly used in modern administrative practice as a detailed classification question to weed out examinees.

Can it be created by ordinance?

Is it different from proxy execution?

Is it different from administrative penalties?

Is the meaning of non-penal fines misunderstood?

Of course, I am not saying that understanding these things has no meaning in itself.

However, if you are going to ask about them, you should fundamentally teach the Administrative Execution Act of the pre-war era, Ministry of Home Affairs-style governance, limitations on administrative authority by the post-war Constitution, and the meaning of why the Administrative Proxy Execution Act left only proxy execution as a general law.

Instead of teaching that, they just use it as a "trick" question.

This does not make it an exam to test understanding of administrative law but rather just an exam to screen candidates.

National examinations that degenerate into such rote memorization games are contrary to the national interest.

What is needed in practice is not personnel who have memorized the trivial details of old systems.

To what extent can the administration exercise its authority?

How can the rights of the people be protected?

How should one distinguish between administrative proxy execution, administrative guidance, administrative disposition, administrative penalties, administrative appeals, and administrative litigation?

How can one identify illegal administrative operations and appropriately correct them?

Such practical judgment is what should truly be tested.

If those setting the exam policy are creating questions that cause candidates to fail based on fine-grained classifications without considering the history or practical importance of the system, then that is not education.

The philosophy of cultivating personnel who can apply the law is missing.

Administrative execution penalty as a topic is a symbol of that.

Originally, it should serve as an important gateway for learning the differences between pre-war administrative coercion and post-war constitutional law.

However, in actual exams, it is often treated as a prop to confuse candidates.

This is a great waste for both administrative law education and the national examination system.

The history of governance that textbooks tend to avoid

Administrative law textbooks explain administrative execution penalties in a detached manner.

"The only current example is Article 36 of the Sabo Act"

It often ends there.

However, this fails to reveal the important points.

Why is the administrative execution penaltyhardly used anymore?

Why was it positioned under theAdministrative Execution Actbefore the war?

Why was theAdministrative Execution Actabolished after the war?

Why did only theAdministrative Proxy Execution Actremain as a general law?

This contains thehistory of governance in Japan.

Pre-war administration was powerful.

The administration had the idea of managing the people and widely using coercive authority to maintain order.

Within an administrative state centered on the Ministry of Home Affairs,administrative objectives were often prioritized over the freedom of the people.

However, the post-war Constitution sought to transform that mindset.

The state is not above, and the people are not below.

The administration cannot do whatever it wants just by claiming public interest.

To protect the rights of the people, administrative authority is bound by law.

Administrative execution penaltiesanddirect coercionwere not left as general systems as a result of this shift.

The administrative execution penalty is a fossil of pre-war administration.

For those studying administrative law,theadministrative execution penaltyis not just an item to memorize.

The administrative execution penaltyis an entry point to understanding the pre-warAdministrative Execution Act.

And it is a comparative subject for understanding the post-warAdministrative Proxy Execution Act.

Furthermore, it is also teaching material for considering whereadministrative authorityandhuman rights protectioncollide.

It is a waste to just memorize Article 36 of the Sabo Actand be done with it.

Why onlyArticle 36 of the Sabo Act?

Why does it remain only in laws from 1897?

Why is it rarely adopted in new laws?

By thinking about that, administrative law suddenly becomes three-dimensional.

Administrative execution penalty is not a system used actively in modern administration.

Rather, it is a fossil of pre-war administrative enforcement.

That fossil remains within the old geological layer known as Article 36 of the Sabo Act.

Administrative law textbooks only teach the name of this fossil.

However, what you should really look at is the geological layer where that fossil sleeps.

Administrative Execution Act, the pre-war geological layer.

Ministry of Home Affairs-style governance, the soil.

Administrative Proxy Execution Act, the post-war geological layer.

And the geological layer of human rights protection known as the Constitution of Japan.

Learning about administrative execution penalty means digging through those layers.

Summary

Administrative execution penalty is a system that psychologically coerces the fulfillment of administrative obligations by giving notice of a non-penal fine.

Under the pre-war Administrative Execution Act, proxy execution, administrative execution penalty, and direct enforcement were positioned as administrative enforcement measures.

However, after the war, the Administrative Execution Act was abolished.

The Ministry of Home Affairs, which handled control using that Administrative Execution Act, was also abolished.

What remained as a general law is the Administrative Proxy Execution Act.

And what the Administrative Proxy Execution Act left behind as a general system is basically proxy execution.

Administrative execution penalties and direct enforcement are not automatically permitted under the Administrative Proxy Execution Act.

They require a clear basis in individual laws.

Currently, the representative example cited for administrative execution penalties is Article 36 of the Sabo Act, enacted in 1897.

Rather than a system suitable for modern administration, this should be viewed as a historical remnant of pre-war administrative enforcement.

Administrative law students can deepen their understanding simply by grasping this point.

Administrative execution penalties are not just a minor point that appears on exams.

They are a small fossil left behind at the intersection where pre-war strong administrative authority clashes with post-war constitutional human rights protections.

And if national exams are using that fossil merely as a trick question, it is a great waste.

What should truly be questioned is not the classification used to trip up examinees.

How do we constrain administrative power?

How do we protect the rights of the people?

What do we learn from pre-war governance?

Administrative law education that asks these questions is what will be useful for practice, beneficial to society, and serve the national interest.