From this dissertation minutely tried to observe Injunctions system about the agency action which is provided in the Federal Administrative Procedure Act of the United States. And tried to observe the judicial precedent of federal Supreme Court where ...
From this dissertation minutely tried to observe Injunctions system about the agency action which is provided in the Federal Administrative Procedure Act of the United States. And tried to observe the judicial precedent of federal Supreme Court where the judicial review of how concretely the United States have become accomplished in the center was grasped. Also tried to observe how the map of the judicial review of United States could reflect in our country administrative lawsuit system
Injunction is an equitable remedy designed to protect property or other rights from irreparable injury by prohibiting or commanding certain acts. The term may also refer more narrowly to the court order, writ, or process that directs a person either to refrain from doing certain acts that are against equity or conscience or, if the relief is mandatory, to undo the wrong or injury with which the person is charged. It may be the final order in an action or it may be allowed as a provisional remedy. Commonly referred to as the "strong arm" of equity, it is an extraordinary remedy that should be used sparingly and only in a clear case. The relief may be granted or denied in the discretion of the court in accordance with the justice and equity of the case. Injunction is not appropriate if a remedy at law can furnish the injured party with the full relief to which he or she is entitled. Courts broadly construe the meaning of the term injunction. Because injunction is a remedy and not a cause of action, a party seeking injunction must allege some wrongful conduct for which the requested injunction is an appropriate remedy.
Whether interlocutory or final, injunctive relief is ordinarily preventive or protective in character and operates upon unperformed acts rather than upon those that have already occurred. With regard to the duration of the restraint, an injunction may be classified as a restraining order, a temporary or preliminary injunction, or a permanent injunction.
Remedy by injunction is generally prohibitory, meaning that the injunction forbids the continuance of a wrongful act or the causing of some threatened or anticipated injury. An injunction is considered prohibitorywhen the thing complained of results from present and continuing affirmative acts and the injunction merely orders a defendant to refrain from doing those acts. In other words, a prohibitory injunction requires a party to desist from doing certain acts in order preserve the status quo. Mandatory injunctions, in contrast, require positive action involving a change of existing conditions by the doing or undoing of an act. An order enjoininga party is prohibitory if it leaves the parties in the same position as they were before the entry of the judgment, while it is mandatory if its enforcement would change the position of the parties or compel them to act in accordance with the judgment. Injunctions may also be of a dual character, possessing both prohibitive and mandatory features. Furthermore, an injunction prohibitive in form may accomplish the same result as one mandatory in form, such as one that restrains the defendant from discontinuing the complainant's access to a public utility.
Unlike a final or permanent injunction, a temporary or interlocutory injunction is preliminary to a hearing on the merits. The object of a temporary injunction, which may be viewed as an execution before judgment, is not to determine any contested right but simply to prevent a threatened wrong or injury to property or rights until the issues and equities can be determined after a full examination and hearing.
Basically, there are two types of injunctions: a preliminary injunction and a temporary restraining order(TRO). The purpose of both is to maintain the status quo -- to insure a plaintiff that the defendant will not either make him or herself judgment-proof, or insolvent in some way, or to stop him or her from acting in the harmful, complained-of way until further judicial proceedings are available.
There is a balancing test that courts typically employ in determining whether to issue an injunction. The defendant's 5th Amendment due process rights are weighed against the possibility of the defendant becoming judgment-proof, and the immediacy of the harm allegedly done to the plaintiff. When it is possible, the defendant must always be put on notice of the injunction hearing, and the duration of the injunction is typically as temporary as possible. Additionally, in many jurisdictions, plaintiffs demanding an injunction are required to post a bond.
Injunctions are also characterized as preventive, reparative, or structural. A preventive injunction attempts to foreclose future harmful acts and therefore is improper unless the defendant is threatening to commit a wrong. A reparative injunction prevents future harmful effects of past acts and requires the defendant to restore the plaintiff to a pre-existing condition to which plaintiff is entitled. A structural injunction is designed to remodel a social or political institution to bring it into conformity with constitutional demands and is typically used as a public law remedy for serious and pervasive rights violations. The mere potential for a future violation of constitutional rights does not give a court authority to continue invocation of its injunctive powers.
An injunction will not issue against one who is not subject to the jurisdiction of the court. Because equity jurisdiction is exercised in personam and not in rem, the remedy of injunction ordinarily operates in personam and is enforceable against individuals and not against property. If, however, a statute provides that a decree in equity operates in rem when a court gains in rem jurisdiction, a court may grant injunctive relief by a decree that operates in rem as well as in personam. Furthermore, if a court has personal jurisdiction and a proper case for injunctive relief is otherwise made out, the court's power to grant that relief will not be defeated by the fact that the injunction refers to real property beyond the territorial jurisdiction or to judicial proceedings prosecuted by the defendant in another state.
Injunctive relief is designed to meet a real threat of a future wrong or a contemporary wrong of a nature likely to continue or recur. Whether interlocutory or final, injunctive relief is ordinarily preventive or protective in character and restrains actions that have not yet been taken. It is generally not intended to redress, or punish for, past wrongs. Coercive in nature, injunctive relief is meant to restrain motion and to enforce inaction. To obtain injunctive relief based on past injury, the plaintiff must show a real and immediate threat that the injury will continue or be repeated. Accordingly, rights already lost and wrongs already perpetrated cannot be corrected by injunction.
In cases of necessity, however, or if serious hardship or injustice will result without injunction, courts have equitable authority to grant mandatory injunctions compelling a defendant to undo the wrong done, except as limited by statute or constitutional provision. Mandatory injunctions compel positive action to change existing conditions and to restore the status quo, while prohibitory injunctions preserve the status quo by restraining the commission or continuance of an act. Under appropriate circumstances, a court can grant injunctive relief that is designed to preserve the status quo so as to prevent issues that are to be submitted to arbitration from becoming moot. The pendency or issuance of an injunction does not prevent a concurrentor later remedy for past violations by indictment or an action for damages by those injured.
The granting of an injunction based on a statute is to be determined by the statute in force when the relief is to be awarded. A court will not grant an injunction requiring a future performance that the court will be unable to supervise.
Generally, the conditions at the time of the hearing of the suit, rather than as they existed at the suit's commencement, will be the basis for any injunctive relief. Because equity interposes by injunction to prevent only future acts, conduct that has been discontinued before or after a suit is brought to restrain such conduct is generally an insufficient basis for injunctive relief. This is especially true when nothing indicates that the acts will likely resume, or when repetition is impossible and the wrongdoer is able to respond in damages. Furthermore, injunctive relief will generally be refused where, before the final hearing, the plaintiff loses his or her interest in the subject matter sought to be protected, or where the act sought to be restrained has been made lawful by statute pending the trial. On remand, new facts that have occurred since the original trial and that relate to the balance of equities are relevant to the determination of injunctive relief.
It has also been held, however, that the discontinuance of wrongful or illegal conduct does not alone warrant the denial of injunctive relief. An injunction may still be justified as a matter of sound judicial discretion whenever conditions have materially changed or the acts complained of have been abandoned. The suit will not be defeated if the defendant threatens further wrongful acts of the same character as the abandoned acts. In determining whether a discontinued course of conduct should be enjoined, a court must consider the genuineness of an expressed intent not to repeat the conduct, the effectiveness of the discontinuance, and the character of past violations, particularly if the violations represent an established practice of the persons to be enjoined. For example, mere assurances by public officials and officials of common carriers that illegal practices affecting civil rights have been terminated will not justify the denial of an injunction, if such officials have persistently opposed the recognition of civil rights.
A defendant who proceeds to do the things complained of after notice of a suit to enjoin cannot defeat the injunction on the grounds that the acts sought to be restrained have already been done. In such circumstances, a preliminary mandatory injunction may be issued to restore the status quo as it existed before the defendant acted. The doing of an act pending an action for an injunction may, however, make it impossible for the court to grant effectual relief, and the court may dismiss the action if the issue has become moot.
When trying to synthesize like this points and our administrative lawsuit, does not accomplish all the role in right relief of the citizen. Also controlling an administrative right cannot accoplish all the role. Consequently, If Judiciary does not change in future, it is going to be extremely difficult troubleshooting. The Supreme Court administrative lawsuit legal revised bill which is propelled problem because like these to our administrative lawsuit development and stepping forward. But revised bill still was abolished in National Assembly and executions are still indefinite. But, When our administrative lawsuit goes with what kind of direction, the role as the mileage ticket does about. There are to like this changes, the Injunctions of the United States grow suggests.