State’s and Local governments’ Standing in the Appeal Litigation

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The Local Government Act and the Constitutional Court Act provides special actions for disputes between the State and local government(s) or between local governments, but their role is restricted as they deal with only part of these disputes. Hence the need for the appeal litigation as a general resolution system for theses disputes. Some say that the adjudication on competence disputes provided by the Constitutional Court Act covers all of those disputes and it is therefore against the Constitution to permit the State or a local government to file an appeal litigation. But the adjudication on competence disputes should be focused on disputes where the key question is which government has the authority(competence) at issue; it should not be expanded to disputes where legality/illegality of an agency disposition is the main issue and the question of competence is not a real problem. The latter should fall into the scope of the appeal litigation. According to the Administration Litigation Act, any who has legal interests to revoke an administrative disposition has a standing in the appeal litigation. The Supreme court interprets these ‘legal interests’ as those protected by laws and regulations that such administrative disposition bases itself upon. The plaintiff must show that his/her own direct and specific interests are at stake by the agency disposition. If the plaintiff is a legal person, e.g. a corporation, the interests of its member(s) are not deemed as its own interests, which means that organizations are not entitled to file an appeal litigation for the good of its members. It is usually private persons who have legal interests. But there are other situations where the State or a local government faces danger of losing its legal interests by an administrative disposition. These interests can be either things other individuals can also enjoy, such as property rights, a position as an employer or a contractor, or they can be some power or privilege given to the government which ordinary individuals can not enjoy. If an administrative disposition is directed to the plaintiff, that is, when the agency decision aims to restrict interests of the plaintiff or the agency refuses to take a measure beneficial to the plaintiff, these interests are always legally protected interests. It does not matter whether the plaintiff is a private person or a public entity, whether private individuals can also enjoy the same interests or not. On the other hand, if the plaintiff happens to be a third party to a certain administrative decision, he/she must prove that his/her own direct and specific interests protected by the governing law are infringed or in danger of infringement. It is the same when the third party is the State or a local government as long as it is its own interests and not those of the people at large. A classic example would be when the local agency granted a building permit to a private corporation without consent of the chief officer of a nearby military facilities. The governing law requires the consent of the officer. The law gives the officer a power to consent so that nearby buildings may not hamper military activities of his troop. As the officer is a state agent, he/she acts on behalf of the State. It is, therefore, the State’s own direct and specific interests that is infringed by an illegal building permit. The State is entitled to file an appeal litigation against the local agency. But neither a local government nor the State can file a suit against an illegal building permit on the ground of potential danger to its residents’ health. It is not the interests of the government which are in danger. It is the residents’ own interests