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2016 (Gyo-Hi) 14

2017.04.21
2016 (Gyo-Hi) 14
Minshu Vol. 71, No. 4
Judgment on whether or not a beneficiary of the Old-Age Employees’ Pension must remain a beneficiary of the same pension at the time when the period specified in Article 43, paragraph (3) of the Employees’ Pension Insurance Act (as it stood prior to the amendment by Act No. 63 of 2012) has elapsed, in order for the amount of Old-Age Employees’ Pension benefits payable under Article 8 of the Supplementary Provisions of the said Act to be revised in accordance with Article 43, paragraph (3) of the said Act
Case seeking revocation of a decision on special Old-Age Employees’ Pension benefits
Judgment of the Second Petty Bench, quashed and decided by the Supreme Court
Tokyo High Court, Judgment of September 9, 2015
In order for the amount of Old-Age Employees’ Pension benefits payable under Article 8 of the Supplementary Provisions of the Employees’ Pension Insurance Act (as it stood prior to the amendment by Act No. 63 of 2012) to be revised in accordance with Article 43, paragraph (3) of the said Act, a beneficiary of the Old-Age Employees’ Pension who is a person insured under the pension scheme must: (i) have been disqualified as a person insured under the pension scheme; and (ii) remain a beneficiary of the same pension at the time when one month has elapsed since the date on which the person was disqualified as an insured person without becoming an insured person.
Article 43, paragraph (3) of the Employees’ Pension Insurance Act (as it stood prior to the amendment by Act No. 63 of 2012) and Article 8 of the Supplementary Provisions of the Employees’ Pension Insurance Act



The Employees’ Pension Insurance Act (as it stood prior to the amendment by Act No. 63 of 2012)

(Amount of Pension Benefits)

Article 43

3. If a beneficiary who is an insured person is disqualified as an insured person and if one month has elapsed since the date on which the person is disqualified as an insured person without becoming an insured person, then, notwithstanding the provisions of the preceding paragraph, the amount of Old-Age Employees’ Pension benefits shall be calculated based on the period during which the person was an insured person prior to the month during which the person is disqualified as an insured person, and the amount of pension benefits shall be revised commencing from the month to which the date on which one month has elapsed since the date on which the person is disqualified as an insured person belongs.



The Employees’ Pension Insurance Act (Supplementary Provisions)

(Special Measures for Old-Age Employees’ Pension)

Article 8

For the time being, if a person who is under 65 years of age (excluding the persons listed in the items of paragraph (1) of Article 7-3 of the Supplementary Provisions) meets all of the following requirements, he/she shall be entitled to receive Old-Age Employees’ Pension benefits:

(i) The person is 60 years of age or older.

(ii) The person has a period of insurance of one year or longer.

(iii) The person meets the requirement specified in Article 42, item (ii).
The judgment of prior instance is quashed and the judgement of the first instance is revoked.

The claim of the appellee shall be dismissed.

The total cost of the suit shall be borne by the appellee.
Reasons for the petition for acceptance of final appeal filed by the counsels for the appeal, JOZUKA Makoto et al.



1. In this case, the appellee received a decision by the Minister of Health, Labour and Welfare on the payment of his Old-Age Employees’ Pension benefits on the basis that the amount of his Old-Age Employees’ Pension benefits payable under the provisions of Article 8 of the Supplementary Provisions of the Employees’ Pension Insurance Act (as it stood prior to the amendment by Act No. 63 of 2013 hereinafter referred to as the “Act”) (hereinafter referred to as “Special Old-Age Employees’ Pension” benefits) would not be revised in accordance with the provisions of Article 43, paragraph (3) of the Act (hereinafter referred to as a “Retirement Revision”), and the appellee has demanded that the appellant revoke the decision, claiming that a Retirement Revision should be made and the aforementioned decision on payment is illegal.

2. The provisions of the relevant laws and regulations related to the Old-Age Employees’ Pension are as described below:

(1) The Act provides that Old-Age Employees’ Pension benefits shall be paid if a person who has a period of insurance: (i) is 65 years of age or older; and (ii) has paid or has been excused from paying insurance premiums for a total of 25 years or longer (Article 42; hereinafter Old-Age Employees’ Pension benefits payable under the provisions of the said article will be referred to as “Standard Old-Age Employees’ Pension” benefits).

(2) The Act also provides that, for the time being, a person who is under 65 years of age (excluding the persons listed in the items of paragraph (1) of Article 7-3 of the Supplementary Provisions) is entitled to receive Special Old-Age Employees’ Pension benefits if such person: (i) is 60 years of age or older; (ii) has a period of insurance for one year or longer; and (iii) meets the requirement specified in (1)(ii) above (Article 8 of the Supplementary Provisions), and that such person’s right to receive the benefits will expire when the person reaches 65 years old (Article 10 of the Supplementary Provisions).

(3) (a) Article 43, paragraph (1) of the Act provides that the amount of Old-Age Employees’ Pension benefits shall be calculated by multiplying the amount equivalent to the prescribed proportion of the person’s mean standard compensation for the entire period during which he/she was insured by the number of months during the period of insurance. With respect to the amount of Special Old-Age Employees’ Pension benefits of a man who was born between April 2, 1941 and April 1, 1949, Article 19, paragraphs (1) and (2) of the Supplementary Provisions of the Act Partially Amending the National Pension Act, etc. (Act No. 95 of 1994; as it stood prior to the amendment by Act No. 63 of 2012; hereinafter the same applies) provide that if he obtains the right to receive benefits while he is at or older than the prescribed age and under 65 years of age, the amount shall be a total of: (i) the amount calculated by the same method as Article 43, paragraph (1) of the Act; and (ii) the amount calculated by multiplying the prescribed unit price by the number of months during the period of insurance (up to the prescribed number of months).

(b) Article 43, paragraph (2) of the Act provides that the period during which the beneficiary was an insured person after the month in which he obtains the right to receive benefits shall not be included in the basis of the calculation. On the other hand, paragraph (3) of the same article provides that if the beneficiary who is an insured person is disqualified as an insured person and if one month has elapsed since the date on which he was disqualified as an insured person (hereinafter referred to as the “Disqualification Date”) without becoming an insured person (hereinafter referred to as the “Waiting Period”), then the amount of Old-Age Employees’ Pension benefits shall be calculated based on period of insurance before the month in which he is disqualified as an insured person and the amount of pension benefits shall be revised commencing from the month to which the date on which the Waiting Period has elapsed belongs.

(c) The Act also provides that payment of pension benefits shall be commenced from the month following the month in which an event for which pension benefits are payable arises and shall be discontinued in the month in which the beneficiary’s right to receive benefits expires (Article 36, paragraph (1)), and that the right to receive insurance benefits (hereinafter referred to as the “Basic Right”) shall be awarded by the Minister of Health, Labour and Welfare in response to a claim from a beneficiary (Article 33). In this regard, Article 33 of the Employees’ Pension Insurance Act as it stood prior to the amendment by Act No. 109 of 2007 (which was enforced on January 1, 2010) provided that such right shall be awarded by the Director-General of the Social Insurance Agency.

3. An outline of the facts related to the case which duly became final and binding in the judgment of prior instance is as described below:

(1) On July 31, 2007, the appellee (a man born on September 18, 1946) requested a decision on Special Old-Age Employees’ Pension benefits from the Director-General of the Social Insurance Agency. On September 13, 2007, the Director-General of the Social Insurance Agency made a decision that the appellee’s right to receive benefits had accrued on September 17, 2006 and that the appellee would receive Special Old-Age Employees’ Pension benefits on the basis that his period of insurance was 433 months. The Director-General also decided that, since the appellee was an active employee who was insured by the Employees’ Pension Insurance and since the amount of the appellee’s payment suspension base amount as referred to in Article 21, paragraph (1) of the Supplementary Provisions of the Act Partially Amending the National Pension Act, etc. was no less than the amount of his Special Old-Age Employees’ Pension benefits, payment of Special Old-Age Employees’ Pension benefits to the appellee would be suspended entirely, based on the proviso of the said paragraph.

(2) On August 30, 2011, the appellee retired from his employment. On the following day (August 31), he was disqualified as a person insured by the Employees’ Pension Insurance. On September 17, 2011, he reached 65 years old.

(3) On October 6, 2011, the Minister of Health, Labour and Welfare lifted the suspension of payment of Special Old-Age Employees’ Pension benefits to the appellee on the grounds that he had been disqualified as a person insured by the Employees’ Pension Insurance, and made a decision to pay to him the amount of pension benefits calculated based on the period of insurance mentioned in (1) above, on the basis that the Special Old-Age Employees’ Pension benefit for September 2011 was not subject to a Retirement Revision (hereinafter referred to as the “Disposition”).

Since October 2011, the appellee has received Standard Old-Age Employees’ Pension benefits calculated based on the period of insurance of 492 months in accordance with the decision by the Minister of Health, Labour and Welfare.

4. Based on the facts related to the case described above, the court of prior instance concluded the appellee’s claims should be accepted, ruling as follows in summary:

The Special Old-Age Employees’ Pension scheme was established as a measure to mitigate drastic changes involved in the raising of the age at which Old-Age Employees’ Pension benefits commence to be paid, and the scheme should be considered to have been designed to work in conjunction with the Standard Old-Age Employees’ Pension scheme in the course of transition to the said scheme. In addition, since a beneficiary of the Special Old-Age Employees’ Pension who is an insured person bears the financial burden of paying insurance premiums for the period of insurance in and after the month in which he/she obtains the right to receive benefits, which is the Basic Right, it is natural that if the beneficiary receives Old-Age Employees’ Pension benefits after being disqualified as an insured person, the amount of benefits should be calculated based on such period of insurance. In light of these circumstances, it is reasonable to understand that Article 43, paragraph (3) of the Act does not require, as a requirement for a Retirement Revision, that the beneficiary remain a beneficiary of the Old-Age Employees’ Pension subject to a Retirement Revision at the time when one month has elapsed since the date on which he/she is disqualified as an insured person. Since the appellee had been disqualified as a person insured by the Employees’ Pension Insurance on August 31, 2011, and since one month had elapsed since that date without his becoming an insured person, a Retirement Revision should have been made to the amount of Special Old-Age Employees’ Pension benefit for September 2011. Therefore, the Disposition is illegal.

5. However, the above ruling by the court of prior instance is unacceptable for the following reasons:

(1) (a) In order to fix the amount of Old-Age Employees’ Pension benefits during the period in which a beneficiary is an insured person, such amount is calculated by excluding from the calculation the part of the period of insurance in and after the month in which an insured person obtains the right to receive benefits (Article 43, paragraph (2) of the Act). For this reason, Article 43, paragraph (3) of the Act provides that if a beneficiary who is an insured person is disqualified as an insured person and if the Waiting Period has elapsed without his/her becoming an insured person, the amount of Old-Age Employees’ Pension benefits shall be recalculated by including in the calculation the aforementioned part of the period of insurance. Then, since paragraph (3) of the said article provides that a person must be a “beneficiary who is an insured person” to be subject to a Retirement Revision, it is logical to understand that this paragraph makes it a requirement for a Retirement Revision that the beneficiary remain a beneficiary of the pension at the time when the Waiting Period has elapsed.

(b) In addition, the Court considers that the reason why Article 43, paragraph (3) of the Act provides as described in 2 (3) (b) above is that, by revising the amount of pension benefits payable under the Basic Right of the Old-Age Employees’ Pension to an amount calculated by including in the calculation the part of the period of insurance mentioned in (a) above, the amount of insurance benefits payable on each payment due date under the Basic Right (including the amount of insurance benefits that have already accrued) should be revised to an amount based on the Basic Right after such revision. Therefore, we can assume that the Act expects that the Basic Right of the pension exists at the time when the Waiting Period for a Retirement Revision has elapsed. Considering also that the Act does not intend to necessarily match the content of the Basic Right of the Special Old-Age Employees’ Pension with that of the Standard Old-Age Employees’ Pension, as seen in the fact that the Act further provides with respect to Special Old-Age Employees’ Pension benefits, as described in 2 above: (i) that their accrual is subject to requirements that are different from those for the accrual of Standard Old-Age Employees’ Pension benefits (Article 8 of the Supplementary Provisions of the Act); (ii) that if a beneficiary of the Special Old-Age Employees’ Pension reaches 65 years old, his/her right to receive benefits expires (Article 10 of the Supplementary Provisions of the Act); and (iii) that the beneficiary must again receive a decision by the Minister of Health, Labour and Welfare in order to receive Standard Old-Age Employees’ Pension benefits (Article 33 of the Act), the interpretation described in (a) above is considered to be in line with the mechanism of the Old-Age Employees’ Pension scheme. The fact that Old-Age Employees’ Pension benefits has the nature of benefits paid in response to the contribution of insurance premiums does not affect the above interpretation.

(c) It is then reasonable to understand that, in order for Special Old-Age Employees’ Pension benefits to be subject to a Retirement Revision, the beneficiary of the pension who is an insured person must: (i) have been disqualified as a person insured under the pension scheme; and (ii) remain a beneficiary of the same pension at the time when the Waiting Period has elapsed without his/her becoming an insured person.

(2) If we apply the above arguments to this case, it is clear from the facts related to the case described above that the amount of the appellee’s Special Old-Age Employees’ Pension benefit for September 2011 should not be subject to a Retirement Revision because the appellee reached 65 years old on September 17, 2011 after having been disqualified as a person insured by the Employees’ Pension Insurance on August 31, 2011 and was no longer a beneficiary of the Special Old-Age Employees’ Pension at the time when August 30, 2011 has elapsed.

6. For the above reasons, the ruling of the court of prior instance that the amount of the appellee’s Special Old-Age Employees’ Pension benefit for September 2011 should be subject to a Retirement Revision and that the Disposition is illegal, contains violations of law that obviously affect the judgment of prior instance. The gist of the argument of the petition for appeal is well-grounded, and therefore the judgment of prior instance should inevitably be quashed. Based on the above arguments, the appellee’s claims are groundless. Therefore, the judgment of the first instance should be revoked and the appellee’s claims dismissed.

Accordingly, the Court unanimously decides as set forth in the main text.
Justice YAMAMOTO Tsuneyuki

Justice ONUKI Yoshinobu

Justice ONIMARU Kaoru

Justice KANNO Hiroyuki
(This translation is provisional and subject to revision.)