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2014 (O) 1130

2017.12.06
2014 (O) 1130
Minshu Vol. 71, No. 10
Judgment regarding the meaning of Article 64, paragraph (1) of the Broadcasting Act
Case claiming acceptance of conclusion of a reception contract for broadcasts
Judgment of the Grand Bench, dismissed
Tokyo High Court, Judgment of April 23, 2014
1. Article 64, paragraph (1) of the Broadcasting Act is a provision compelling a person installing reception equipment capable of receiving broadcasts of the Japan Broadcasting Corporation to conclude a contract for reception of the broadcasts, and if the above-mentioned person does not accept an offer from the Japan Broadcasting Corporation for the above-mentioned contract, the Japan Broadcasting Corporation seeks a judgment ordering the person to manifest his/her intention of acceptance, and the above-mentioned contract is effected when the judgment becomes final and binding.

2. Article 64, paragraph (1) of the Broadcasting Act is a provision for compelling the conclusion of a contract for reception of broadcasts of the Japan Broadcasting Corporation, the content of which is necessary for appropriate and fair collection of fees for receiving broadcasts in a way befitting of the Japan Broadcasting Corporation’s purposes prescribed in the same Act, and does not violate Article 13, Article 21, and Article 29 of the Constitution.

3. When the above-mentioned contract, which includes a provision to the effect that a person concluding a contract for reception of broadcasts of the Japan Broadcasting Corporation must pay prescribed fees for receiving broadcasts from the month of installation of reception equipment, is effected by a judgment ordering the person to manifest his/her intention of acceptance of an offer for the same contract becoming final and binding, a claim for fees for receiving broadcasts for the period after the month of installing reception equipment accrues based on the same contract.

4. The extinctive prescription for a claim for fees for receiving broadcasts for the period after the month of installation of reception equipment that accrues based on a contract for reception of broadcasts of the Japan Broadcasting Corporation (excluding those due dates for the performance of which come after the effect of the above-mentioned contract) commences to run from the time when the above-mentioned contract is effected.

(There is a concurring opinion regarding 1, a concurring opinion regarding 1 and 2, a concurring opinion regarding1 and 3, and a dissenting opinion regarding 1 to 4.)
(Regarding 1 to 4) Article 1, Chapter 3 (Japan Broadcasting Corporation (NHK)), and Article 64, paragraph (1) of the Broadcasting Act

(Regarding 1 and 3) Article 414, paragraph (2), proviso of the Civil Code, and Article 174, paragraph (1), main clause of the Civil Execution Act

(Regarding 2) Article 13, Article 21, and Article 29 of the Constitution

(Regarding 4) Article 166, paragraph (1) of the Civil Code



Broadcasting Act

(Purpose)

Article 1 The purpose of this Act is to regulate broadcasting so as to conform to standards for public welfare and to facilitate the sound development of broadcasting in accordance with the following principles:

(i) Guaranteeing that broadcasts reach as much of the general public as possible and that the benefits derived from broadcasts are fully realized;

(ii) Ensuring freedom of expression in broadcasting by guaranteeing impartiality, truth and autonomy; and

(iii) Enabling broadcasting to contribute to the development of healthy democracy by clarifying the responsibilities of persons involved in broadcasting.

(Reception Contracts and Fees for Receiving Broadcasts)

Article 64 (1) Persons installing reception equipment capable of receiving NHK broadcasts conclude a contract with NHK for the reception of those broadcasts; provided, however, that this does not apply to those persons who have installed reception equipment not intended for the reception of broadcasts or reception equipment only capable of receiving radio broadcasts (meaning broadcasts comprising of voices and other sounds that do not come under television broadcasting or multiple broadcasting; the same applies in Article 126, paragraph (1)) or multiple broadcasting.

Civil Code

(Enforcement of Performance)

(2) In cases the nature of the obligation does not permit the enforcement of the specific performance, if it is an obligation for an act, the obligee may request the court to cause a third party to perform such act at the expense of the obligor; provided, however, that with respect to any obligation for any juristic act, the manifestation of intention of the obligor may be achieved by a judgment.

(Running of Extinctive Prescription)

Article 166 (1) The extinctive prescription commences to run when it has become possible to exercise the right.

Civil Execution Act

(Constructive Manifestation of Intention)

Article 174 (1) When a judgment or any other judicial decision ordering the obligor

to manifest his/her intention has become final and binding, or when a title of

obligation pertaining to a settlement, acknowledgment, mediation or labor

tribunal judgment has been established, the obligor shall be deemed to have

manifested his/her intention at the time when such judicial decision became final

and binding or such title of obligation was established; provided, however, that if

the manifestation of intention by the obligor relates to actualization of a fact to be

proved by an obligee, the obligor shall be deemed to have manifested his/her

intention at the time when a certificate of execution was granted pursuant to the

provisions of Article 27(1), and if it relates to an exchange with counterperformance

or relates to absence of a fact to be proved by the obligor such as

performance of an obligation, the obligor shall be deemed to have manifested his/

her intention at the time when a certificate of execution was granted pursuant to

the provisions of the following paragraph or paragraph (3).

the Constitution of Japan

Article 13. All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.

Article 21. Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.

No censorship shall be maintained, nor shall the secrecy of any means of communication be violated.

Article 29. The right to own or to hold property is inviolable.

Property rights shall be defined by law, in conformity with the public welfare.

Private property may be taken for public use upon just compensation therefor.
Each final appeal is dismissed.

Each cost regarding the final appeal shall be borne by each appellant.
I. Outline of the case

1. In this case, the appellee of 2014 (O) No. 1130 and 2014 (Ju) No. 1440, who is also the appellant of 2014 (Ju) No. 1441, (hereinafter referred to as the “plaintiff”) seeks payment, etc. of fees for receiving broadcasts from the appellant of 2014 (O) No. 1130 and 2014 (Ju) No. 1440, who is also the appellee of 2014 (Ju) No. 1441 and who has not concluded a contract for reception of broadcasts of the plaintiff (hereinafter referred to as a “reception contract”) with the plaintiff even though reception equipment capable of receiving broadcasts of the plaintiff (hereinafter referred simply to as “reception equipment” as the case may be) has been installed, (hereinafter referred to as the “defendant”).

2. The outline of facts related to the case that duly became final and binding in the judgment in prior instance, etc. (including common knowledge) is as follows:

(1) Outline of a system pertaining to the plaintiff based on the Broadcasting Act, etc.

a. The plaintiff is a corporation established pursuant to the Broadcasting Act (Article 16 of the same Act), and aims “to transmit domestic basic broadcasts (snip) through broadcasting good-quality, rich programs, which can be received throughout the whole of Japan, to conduct operations in connection with broadcasting and the advancement and development of reception thereof as well as to transmit international and international satellite broadcasts for the purpose of public welfare” (Article 15 of the same Act).

b. Before the enforcement of the Broadcasting Act (hereinafter referred to as “under the old Act”), in Japan, only the incorporated-association Japan Broadcasting Corporation conducted broadcasting after its establishment in 1926, and the installation of broadcast reception equipment (listening radio telephones) required permission of the competent minister pursuant to Article 2 of the Radiotelegraphy Act as a type of radio telephone that was regulated and controlled by the government. Furthermore, pursuant to Article 13 of the Rules of Private Radio Telephones for Broadcasting, to obtain permission for installation of broadcast reception equipment, a listening contract with the broadcasting facility (the incorporated-association Japan Broadcasting Corporation) must be submitted together with an application for permission. In addition, the Radiotelegraphy Act contained penal provisions for a person installing a radio telephone, etc. without permission. Under this system, persons installing broadcast reception equipment paid fees for listening broadcasts to the incorporated-association Japan Broadcasting Corporation based on listening contracts, and the incorporated-association Japan Broadcasting Corporation conducted broadcasting business, using fees for listening broadcasts as its basic financial source.

There were no statutory standards for the above-mentioned permission for installation of a radio telephone. In addition, the broadcasting business was under the supervision of the government, and the content of the programs was regulated by censorship, etc.

c. In 1950, along with the enactment and enforcement of the Radio Act, the Broadcasting Act, and the Radio Regulatory Commission Establishment Act, the Radiotelegraphy Act was repealed, and therefore, permission was no longer required for installation of broadcast reception equipment. Furthermore, for the broadcasting business in Japan, the Broadcasting Act adopted a dual-structure system composed of broadcasting business conducted by the public broadcaster, who “aims to transmit broadcasts, which can be received throughout the whole of Japan, for the purpose of public welfare” (Article 7 of the Broadcasting Act at the time of its enactment) and broadcasting business conducted by other general broadcasters (Chapter 3 of the same Act; hereinafter referred to as “private broadcasters”). The Broadcasting Act assigned the role of the public broadcaster to the plaintiff, a special corporation which was established pursuant to the same Act and directly succeeded property of the incorporated-association Japan Broadcasting Corporation, and set provisions on the plaintiff’s operations and operation system, etc. (Chapter 2 of the same Act). Just for information, the provisions on the plaintiff’s purposes, operations, operation system, etc. were revised several times and are now as mentioned after in f, but the basic matters have already been prescribed since the enactment: the basic purpose of the plaintiff is to transmit broadcasts for the purpose of public welfare, and the content of operations for the accomplishment of the purpose are determined by law; the Board of Governors is established as the chief decision-making body of the plaintiff, and there are provisions as mentioned after in f on the members’ way of appointment, qualification requirements, etc.; the President, who represents the plaintiff and presides over its operations, is appointed by the Board of Governors, and the Council, etc. is established to discuss the performance of the important operations of the plaintiff; and the plaintiff’s income and expenditure budgets, etc., business report, and inventory of assets, etc. are to be submitted, etc. to the National Diet through the Cabinet.

In the deliberation of the National Diet at the time of the enactment of the Broadcasting Act, regarding the adoption of such dual-structure system, a personnel member of the government explained as follows: The business forms of the broadcasting business in Japan will have a dual structure composed of a national and public broadcast business entity that establishes broadcasting facilities, which enables broadcasts to be received throughout the whole of Japan, and assumes a role to broadcast programs that satisfies the demands of all the people, and cultural broadcast business entities as free business enterprises, so-called general broadcast stations or private broadcast stations, that develop and enhance the broadcast culture freely and actively by the originality and ingenuity of individuals, with the intention of making both types of entities utilize their advantages, respectively, enlighten each other, and cover each other’s disadvantages so that the people can enjoy welfare fully through broadcasts (Minute No. 1, at 20 of the 7th Telecommunication Commission of the House of Representatives of the National Diet of January 24, 1950).

d. With regard to the financial source for business operations of the plaintiff, on the basis that the financial source is to be covered by fees for receiving broadcasts paid by persons installing reception equipment capable of receiving broadcasts of the plaintiff (hereinafter referred to as “reception-equipment installers”), the Broadcasting Act prescribed that persons installing reception equipment capable of receiving the Corporation’s standard broadcasts must conclude a contract with the Corporation for the reception of those broadcasts (Article 32, paragraph (1), main clause of the Broadcasting Act at the time of its enactment) and prohibited the plaintiff from having the aim of making a profit when conducting its operations and from broadcasting advertisements for sales of other businesses (Article 9, paragraph (3) and Article 46, paragraph (1) of the same Act). Article 64, paragraph (1), main clause of the current Broadcasting Act succeeded the above-mentioned provision of Article 32, paragraph (1), main clause of the Broadcasting Act at the time of its enactment (Article 32, paragraph (1) of the Broadcasting Act at the time of its enactment and Article 64, paragraph (1) of the current Broadcasting Act, hereinafter referred to as “Article 64, paragraph (1)” without being distinguished as the case may be).

Regarding the inclusion in the Broadcasting Act of a provision to the effect that a reception-equipment installer must conclude a reception contact with the plaintiff, in deliberations of the National Diet at the time of the enactment of the same Act, a personnel member of the government explained as follows: The permission system for receivers was abolished. Therefore, since no-charge broadcasts will be transmitted on the other hand, it is expected that the Japan Broadcasting Corporation will be unable to continue collecting fees for listening broadcasts if there are no legal grounds. As I mentioned earlier, a provision that compulsorily requires the people and the Japan Broadcasting Corporation to conclude a listening contract will be needed (Minute No. 4, at 6 of the 7th Telecommunication Commission of the House of Representatives of the National Diet of February 2, 1950).

e. The Broadcasting Act was promulgated on May 2, 1950, and except for part of the supplementary provisions, was enforced from June 1, 1950. In September 1951, broadcasts by private broadcasters (hereinafter referred to as “private broadcasts”) commenced. Private broadcasts were conducted by using advertising revenues, etc. as their financial sources, and reception-equipment installers became able to receive private broadcasts without bearing any financial burden against private broadcasters.

f. Provisions on the plaintiff’s purposes, operations, operation system, etc. were revised several times after the enactment of the Broadcasting Act, and the outline of the plaintiff’s current purposes, operations, operation system, etc. is as follows:

(a) As mentioned before in a, one of the plaintiff’s purposes is to transmit domestic basic broadcasts, which can be received throughout the whole of Japan (Article 15 of the Broadcasting Act), and if authorization is not given by the Minister of Internal Affairs and Communications, the plaintiff may not discontinue its basic broadcasting stations or its broadcasting operations, or suspend its broadcasting for 12 hours or more (Article 86, paragraph (1) of the same Act). Moreover, as a designated public institution in the Basic Act on Disaster Control Measures, the plaintiff shall be responsible for cooperating with the government, etc. so that development and implementation of disaster prevention plans are conducted smoothly (Article 2, item (v) and Article 6 of the same Act, and the Prime Minister’s Office Public Notice No. 26 in 1962).

The plaintiff’s other purpose is to transmit domestic basic broadcasts through broadcasting good-quality, rich programs (Article 15 of the Broadcasting Act), and the plaintiff is required to make maximum effort to satisfy the needs of the public and to contribute to the improvement of cultural standards (Article 81, paragraph (1), item (i) of the same Act), beyond broadcast programs targeting the entire country, to provide broadcast programs designed for local regions (item (ii) of the same paragraph), and to assist in the preservation of the distinguished cultural legacy of Japan and development and spreading of emerging culture (item (iii) of the same paragraph). In addition, the plaintiff must conduct public opinion polls in order to identify the needs of the public (paragraph (2) of the same Article).

In the plaintiff’s purposes, to conduct operations necessary for the advancement and development of broadcasting and reception thereof (Article 15 of the Broadcasting Act) is also included, and the plaintiff is to conduct investigative research necessary for the advancement and development of broadcasting and reception thereof (Article 20, paragraph (1), item (iii) of the same Act).

Furthermore, in the plaintiff’s purposes, to transmit international broadcasts, etc. is also included (Article 15 of the Broadcasting Act), and the plaintiff is to transmit international broadcasts, etc. for Japanese and international broadcasting, etc. for foreign nationals (Article 20, paragraph (1), item (iv) and item (v) of the same Act).

(b) Regarding the plaintiff’s operation system, the Board of Governors, a body that conducts important decision making, etc. regarding the basic policy relating to management, is established (Chapter 3, Section 3 of the Broadcasting Act), and its members are to be appointed by the Prime Minister, with the consent of both Houses of the National Diet, from among persons capable of making a fair judgment on public welfare and who have extensive knowledge and experience; and when making the appointment, consideration must be given to the fields of education, culture, science and technology, industry and other fields and to ensure that all regions across the country are fairly represented; and grounds for disqualification are prescribed to ensure political neutrality and independence from specific interests (Article 31 of the same Act).

The President, who represents the plaintiff and presides over its operations in accordance with the decisions of the Board of Governors, is to be appointed by the Board of Governors, and the Vice President and the Directors are to be appointed by the President with the consent of the Board of Governors (Article 51 and Article 52 of the Broadcasting Act). The Council is to be composed by these persons, and is to discuss the performance of the important operations of the plaintiff pursuant to the provisions of the articles of incorporation (Article 50 of the same Act). In addition, the Audit Committee, which audits the performance of duties by the officers, is established (Chapter 3, Section 4 of the same Act), and the audit members are to be appointed by the Board of Governors from among the members of the Board of Governors (Article 42 of the same Act).

(c) Regarding the plaintiff’s finances and accounting, the plaintiff must prepare an income and expenditure budget, business plan and funding plan, business report, and inventory of assets, balance sheet, profit and loss statement and other financial statements for each business year and submit them to the Minister of Internal Affairs and Communications, and these documents are to be submitted, etc. to the National Diet through the Cabinet (Article 70, paragraph (1) and paragraph (2), Article 72, paragraph (1) and paragraph (2), and Article 74, paragraph (1) to paragraph (3) of the Broadcasting Act).

(d) As mentioned before in d, the basic financial source for the plaintiff’s business operations are fees for receiving broadcasts that are paid by reception-equipment installers based on reception contracts (Article 64 of the Broadcasting Act), and the plaintiff is prohibited from aiming to make a profit when conducting its operations and from broadcasting advertisements for other businesses’ sales (Article 20, paragraph (4) and Article 83, paragraph (1) of the same Act).

The monthly fees for receiving broadcasts are to be established through the National Diet, who approves the plaintiff’s income and expenditure budget for each business year (Article 70, paragraph (4) of the Broadcasting Act).

The plaintiff must obtain authorization from the Minister of Internal Affairs and Communications in advance with regard to the terms of the reception contract (Article 64, paragraph (3) of the Broadcasting Act), and the Minister of Internal Affairs and Communications must consult the Radio Regulatory Council with regard to the authorization of the terms of the reception contract (Article 177, paragraph (1), item (ii) of the same Act). Moreover, in Article 23 of the Regulation for Enforcement of the Broadcasting Act, there are provisions to the effect that the terms of the reception contract are to include at least the way to conclude a reception contract (item (i)), the unit of a reception contract (item (ii)), the way to collect fees for receiving broadcasts (item (iii)), matters regarding the indication of a person concluding a reception contract (item (iv)), procedures for termination of a reception contract and change of the name or address of a person concluding a reception contract (item (v)), matters regarding exemption of fees for receiving broadcasts (item (vi)), the way in which fees are collected for receiving broadcasts in the case of failure to conclude a reception contract and in the case of a delay in the payment of fees for receiving broadcasts (item (vii)), matters from which the plaintiff is discharged and matters for which the plaintiff takes responsibility (item (viii)), and the way in which the terms of the contract are communicated to the public (item (ix)).

g. The plaintiff has developed the “Japan Broadcasting Corporation Broadcast Reception Rules” (hereinafter referred to as the “Broadcast Reception Rules”) (pursuant to Article 29, paragraph (1), item (i), (j) of the Broadcasting Act, the terms of the reception contract are matters to be decided at the Board of Governors), has obtained authorization from the Minister of Internal Affairs and Communications in advance pursuant to Article 64, paragraph (3) of the same Act, and is using them as the terms of the reception contract.

In the Broadcast Reception Rules, the following provisions are included (Since the Broadcast Reception Rules have been revised several times through changing, etc. the types of reception contracts, amounts of fees for receiving broadcasts, and ways in which fees are paid, revisions conducted in periods related to this case are specified according to their relevant periods.):

(a) Types of reception contracts (Article 1)

(i) From April 1, 2005 to September 30, 2007

A person installing reception equipment consisting of color-television-type reception equipment capable of receiving television broadcasts by satellite systems must conclude a satellite color contract (a reception contract including color reception of television broadcasts by satellite systems and terrestrial systems).

(ii) Since October 1, 2007

A person installing reception equipment consisting of television-type reception equipment capable of receiving television broadcasts by satellite systems must conclude a satellite contract (a reception contract for reception of television broadcasts by satellite systems and terrestrial systems).

(b) Obligation to pay fees for receiving broadcasts (Article 5)

A person concluding a reception contract must pay fees of the following amounts (including national and local consumption taxes) for receiving broadcasts for one reception contract from the month of installation of reception equipment:

(i) From April 1, 2005 to September 30, 2007

For a satellite color contract, a monthly fee of 2,340 yen through door-to-door collection (payment by a method other than account transfer, etc.);

(ii) From October 1, 2007 to September 30, 2008

For a satellite contract, a monthly fee of 2,340 yen through door-to-door collection;

(iii) From October 1, 2008 to September 30, 2012

For a satellite contract, a monthly fee of 2,290 yen;

(iv) Since October 1, 2012

For a satellite contract, a monthly fee of 2,220 yen through payment made by continuous transfer or other methods (excluding account transfer or continuous payment with a credit card, etc.)

(c) Way in which fees for receiving broadcasts are paid (Article 6)

Fees for receiving broadcasts must be paid en bloc under the following terms, respectively, for the relevant term.

Term I: April and May

Term II: June and July

Term III: August and September

Term IV: October and November

Term V: December and January

Term VI: February and March

h. For over 60 years after the enforcement of the Broadcasting Act, the plaintiff has conducted its operations based on the same Act, but had not taken a compulsory measure as in this case against a person who does not conclude a reception contract, and has collected fees for receiving broadcasts based on reception contracts that were concluded voluntarily with reception equipment installers. According to the figures estimated and published by the plaintiff, the concluding rate of reception contracts was about 80 percent at the end of JFY 2016.

(2) Installation of reception equipment by the defendant, etc.

As from March 22, 2006, at the defendant’s residence, the defendant had installed color-television type reception equipment capable of receiving television broadcasts by the satellite systems of the plaintiff.

Through a document that arrived on September 21, 2011, the plaintiff made an offer for a reception contract to the defendant, but the defendant did not accept it.

3. The plaintiff’s claims against the defendant are as follows: As a primary claim, the plaintiff is demanding payment of 215,640 yen in total fees for receiving broadcasts for the period from April 2006, which is the month following the month of installation of the reception equipment, to January 2014, alleging that a reception contract was concluded at the time when the offer for a reception contract by the plaintiff arrived at the defendant, pursuant to Article 64, paragraph (1) of the Broadcasting Act; as alternative claim 1, the plaintiff is demanding payment of the same amount as above as compensation for loss or damages based on default, alleging that the defendant is obliged to conclude a reception contract based on the same paragraph, but the performance of the obligation is delayed; as alternative claim 2, the plaintiff is demanding manifestation of the intention of accepting the offer for a reception contract from the plaintiff, alleging that the defendant is obliged to make such acceptance based on the same paragraph, and demanding payment of the same amount as above as fees for receiving broadcasts based on a reception contract that is to be concluded by the acceptance; and as alternative claim 3, the plaintiff is demanding payment of the same amount as above as a claim for return of unjust enrichment, alleging that by not concluding a reception contract, the defendant is acquiring amounts equivalent to fees for receiving broadcasts through losses on the part of the plaintiff without any statutory causes.

On the other hand, the defendant is alleging that Article 64, paragraph (1) of the Broadcasting Act is an advisory provision and not a provision that compels a reception-equipment installer to conclude a reception contract with the plaintiff, and that if the same paragraph is a provision that compels a reception-equipment installer to conclude a reception contract with the plaintiff, the provision infringes on a reception-equipment installer’s freedom of contract, right to know, property right, etc. and violates Article 13, Article 21, Article 29, etc. of the Constitution, and is disputing the range of a claim for fees for receiving broadcasts that accrues by a reception contract and alleging extinctive prescription regarding part of the claim.

II. Reasons for the final appeal and reason II-4 for the petition for acceptance of final appeal filed by the counsels for the final appeal of 2014 (O) No. 1130 and 2014 (Ju) No. 1440, TAKAIKE Katsuhiko and others, and reasons for the petition for acceptance of final appeal filed by the counsels for the final appeal of 2014 (Ju) No. 1441, NAGANO Takeshi and others

1. Meaning of Article 64, paragraph (1) of the Broadcasting Act

(1) a. Broadcasting should be widely available for the people as something that satisfies the people’s right to know substantially, and contributes to the development of a sound democracy under the guarantee of freedom of expression prescribed in Article 21 of the Constitution. The above-mentioned meaning of broadcasting was reflected in the Broadcasting Act, which was established for the purpose of regulating broadcasting so as to conform to standards for public welfare and facilitating the sound development of broadcasting in accordance with the following principles: Guaranteeing that broadcasts reach as much of the general public as possible and that the benefits derived from broadcasts are fully realized; ensuring freedom of expression in broadcasting by guaranteeing impartiality, truth and autonomy; and enabling broadcasting to contribute to the development of a healthy democracy by clarifying the responsibilities of persons involved in broadcasting (Article 1).

To accomplish the above-mentioned purposes, as mentioned before, regarding the broadcasting business, which used to be conducted only by the incorporated-association Japan Broadcasting Corporation under the old Act, the Broadcasting Act adopted a dual structure with the intention of enabling a public broadcaster and private broadcasters to utilize their advantages respectively, to enlighten each other, and to cover each other’s disadvantages so that the people can enjoy welfare fully through broadcasts. Then, the same Act established the plaintiff as a public broadcaster playing a role in the dual structure, prescribed the plaintiff’s purpose, operations, operation system, etc. as mentioned before, positioned the plaintiff as a business entity that is operated autonomously while being based on a democratic and pluralistic basis, and made the plaintiff conduct broadcasting for welfare.

As mentioned before, the fact that the Broadcasting Act prohibits the plaintiff from aiming to make a profit when conducting its operations and from broadcasting advertisements for other businesses’ sales (Article 20, paragraph (4) and Article 83, paragraph (1)) to make the financial source for business operation covered by fees for receiving broadcasts paid by reception equipment installers defines the public characteristic of the plaintiff from the aspect of its financial source. More specifically, by preventing the plaintiff from being controlled or affected with regard to its financial aspect by specific individuals, organizations, or national agencies, etc., and by requiring persons in environments capable of receiving the broadcasts of the plaintiff through installation of reception equipment to assume burdens widely and equally, regardless of whether they actually receive broadcasts from the plaintiff or not, the above-mentioned mechanism of the financial source shows precisely the idea that the plaintiff should be a business entity that is supported by all of the above-mentioned persons.

As mentioned before, the meaning of establishment of the plaintiff and the purpose of making the plaintiff’s financial source for business operation covered by fees for receiving broadcasts ultimately intend to satisfy the people’s right to know substantially and to contribute to the sound development of democracy and aim to form a mechanism necessary and reasonable for this intention. In addition, as mentioned before, in the establishment and enforcement of the Broadcasting Act, the permission system for installation of reception equipment, which compelled conclusion of a listening contract substantially under the old Act, was abolished. In light of these facts, the Article 64, paragraph (1) of the Broadcasting Act can be construed as a provision that was set as a legally effective method to secure the plaintiff’s financial foundation, and it is difficult to deem it as a provision without a legally binding effect.

b. Furthermore, Article 64, paragraph (1) of the Broadcasting Act prescribes that a reception-equipment installer “must conclude a contract for reception of the broadcasts” with the plaintiff. From this provision, it is apparent that the Broadcasting Act creates the obligation to pay fees for receiving broadcasts not only by the installation of reception equipment or the offer from the plaintiff to a reception-equipment installer without acceptance, but by the conclusion of a reception contract, that is, an agreement between the plaintiff and a reception-equipment installer. This indicates that the Broadcasting Act intends to succeed the relationship under the old Act, in which a person installing broadcast reception equipment concluded a listening contract with the incorporated-association Japan Broadcasting Corporation and paid fees for listening broadcasts. As mentioned before, since the permission system for installation of reception equipment, which substantially compelled the conclusion of a listening contract under the old Act, was abolished, Article 64, paragraph (1) of the Broadcasting Act was set as a provision to compel a reception-equipment installer to conclude a reception contract with the plaintiff. In the same Act itself, there are no specific procedures prescribed to realize the compulsion of conclusion of a reception contract, but in the Civil Code, there is a provision to the effect that with respect to any obligation for any juristic act, the manifestation of intention of the obligor may be achieved by a judgment (Article 414, paragraph (2), proviso of the same Code), and in the Code of Civil Procedure at the time of the enactment of the Broadcasting Act, there was a provision to the effect that when a judgment ordering the obligor to manifest his/her intention has become final and binding, the obligor shall be deemed to have manifested his/her intention (Article 736 of the same Code; the same effect as Article 174, paragraph (1), main clause of the Civil Execution Act). Therefore, it is adequate to construe the compulsion of conclusion of the reception contract referred to in Article 64, paragraph (1) of the Broadcasting Act as a mechanism prescribed to be realized by the above-mentioned provisions of the Civil Code and the Code of Civil Procedure.

In this respect, the plaintiff argues that a reception contract is effected at the time when an offer for a reception contract from the plaintiff arrives at a reception-equipment installer, or at the latest, at the time when a reasonable period of time elapses from the time of the arrival of the offer, alleging that if the plaintiff cannot collect fees for receiving broadcasts from a person who does not conclude a reception contract even though reception equipment has been installed, unless the plaintiff obtains a judgment ordering the person to manifest his/her intention of acceptance, the plaintiff is forced to follow circuitous procedures (an argument pertaining to the primary claim).

However, in order to stably secure the financial foundation of the plaintiff, who is in charge of public broadcasting in the dual-structure system under the Broadcasting Act, it is basically preferable for the plaintiff to endeavor to obtain understanding over the conclusion of a reception contract by explaining the plaintiff’s purpose, content of operations, etc. prescribed in the same Act to a reception-equipment installer and to operate supported by reception-equipment installers who have concluded reception contracts in response to the endeavor. In fact, as mentioned before, for a long period of time after the enforcement of the same Act, the plaintiff has collected fees for receiving broadcasts with the acceptance of the conclusion of reception contracts from reception-equipment installers, and it is apparent that these reception contracts have been effected by the correspondence of manifestation of the intentions of both parties. Since there are no special provisions in the same Act on methods to force a contract to be effected for a person who does not conclude a reception contract voluntarily, even with a person who does not conclude a reception contract voluntarily, it should be said that the correspondence of manifestation of the intentions of both parties is needed to effect a reception contract.

c. At the same time, the fact that in the compulsion of conclusion of a reception contract, there are no provisions in the Broadcasting Act on the content of the contract, and the content is prescribed in the Broadcast Reception Rules, which has been developed by the plaintiff, who is a party, may become an issue.

However, amounts of fees for receiving broadcasts, which are the most important factor in the reception contract, are to be established through the National Diet, who must approve the plaintiff’s income and expenditure budget for each business year (Article 70, paragraph (4) of the Broadcasting Act), and authorization from the Minister of Internal Affairs and Communications (at the time of the enactment of the same Act, the Radio Regulatory Commission) must be obtained in advance with regard to the terms of the reception contract (Article 64, paragraph (3); at the time of the enactment of the same Act, Article 32, paragraph (3)), and the Minister of Internal Affairs and Communications must consult the Radio Regulatory Council with regard to the authorization (Article 177, paragraph (1), item (ii)). From these provisions, it is apparent that the same Act contemplates that the content of the reception contract established as such fit in the plaintiff’s purpose stipulated in the same Act. Even though there are no provisions in the same Act on standards for authorization from the Minister of Internal Affairs and Communications with regard to the terms of the reception contract, as mentioned before, Article 23 of the Regulation for Enforcement of the Broadcasting Act stipulates that the terms of the reception contract are to include at least the way to conclude a reception contract, the unit of a reception contract, and the way in which fees are collected for receiving broadcasts, etc. This mechanism requires terms related to these matters to be expressly prescribed in the Broadcast Reception Rules developed by the plaintiff, the content of such terms to be appropriate in light of the purpose of the before-mentioned compulsion of conclusion of a reception contract, and reception-equipment installers to be treated fairly. Moreover, terms related to matters other than the above-mentioned ones are construed to be limited to those necessary for appropriate and fair collection of fees for receiving broadcasts.

It can be said that the terms of the Broadcast Reception Rules relating to the claim for principal action (as mentioned before in I-2 (1) g) are within the range necessary for appropriate and fair collection of fees for receiving broadcasts in a way befitting of the plaintiff’s purpose prescribed in the Broadcasting Act.

(2) From the above reasons, it is adequate to understand that Article 64, paragraph (1) of the Broadcasting Act is a provision to compel a reception-equipment installer to conclude a reception contract, and if a reception-equipment installer does not accept an offer for a reception contract from the plaintiff, the plaintiff seeks a judgment ordering the person to manifest his/her intention of acceptance, and a reception contract is effected at the time when the judgment becomes final and binding.

(3) The plaintiff argues that the plaintiff may claim compensation from a reception-equipment installer for loss or damage of an amount equivalent to fees for receiving broadcasts, alleging that failure of the reception-equipment installer to perform his/her obligation to conclude a reception contract under Article 64, paragraph (1) of the Broadcasting Act promptly after the installation of reception equipment falls under delay in performance (an argument pertaining to the alternative claim 1). As mentioned later, however, since it can be held that a claim for fees for receiving broadcasts accrues from the month of installation of reception equipment by the effect of a reception contract under the Broadcast Reception Rules, which has been developed and treated as the content of the reception contract by the plaintiff, it cannot be said that loss or damage of an amount equivalent to fees for receiving broadcasts accrues on the part of the plaintiff by the delay of the reception-equipment installer in concluding a reception contract. Moreover, since the Broadcasting Act creates the obligation to pay fees for receiving broadcasts by the conclusion of a reception contract, it is not adequate to affirm a result that is the same as allowing the plaintiff to collect fees for receiving broadcasts without concluding a reception contract with the reception-equipment installer.

2. Conformity of Article 64, paragraph (1) of the Broadcasting Act with the Constitution

(1) The points argued by the defendant are that Article 64, paragraph (1) of the Broadcasting Act, which compels a reception-equipment installer to conclude a reception contract, infringes on the freedom of contract, right to know, property right, etc. and violates Article 13, Article 21, Article 29, etc. of the Constitution. The purposes of these arguments can be construed as follows: (i) It is inadequate that even though the installation of reception equipment does not necessarily mean the reception of broadcasts of the plaintiff, a reception-equipment installer necessarily has to pay fees for receiving broadcasts to the plaintiff, and the freedom to watch and listen to private broadcasts that one can receive without any monetary burden is also restrained; and (ii) the situation that the conclusion of a reception contract, by which the obligation to pay fees for receiving broadcasts is created, is compelled while the content of the contract is not established by law but established by the Broadcast Reception Rules developed by the plaintiff contravenes the principle of freedom of contract.

It can be said that the above-mentioned (i) is an issue of whether the Constitution allows the Broadcasting Act to establish the plaintiff and to make the plaintiff’s financial foundation secured by fees for receiving broadcasts borne by reception-equipment installers, and the above-mentioned (ii) is an issue of whether the Constitution allows the Broadcasting Act to take a method of compulsion of conclusion of a reception contract in order to make reception-equipment installers bear fees for receiving broadcasts if the above-mentioned (i) is allowed.

(2) Regarding broadcasting using radio waves, since radio waves are limited resources, and there is a need to ensure their fair and effective use within the internationally assigned range, broadcasting using radio waves has intrinsically required certain regulations by the government to be adhered to, such as the license system for establishment of a broadcast station as one for radio stations (see Article 4 of the Radio Act), etc. As mentioned previously, under the old Act, broadcasting was regulated only as one type of radio telephone referred to in the Radiotelegraphy Act, and the broadcasting business and reception of broadcasts were to be regulated and controlled at the wide and free discretion of the administrative authority, and therefore, under the Constitution of Japan, such situation came to be revised. However, how to establish a specific system appropriately cannot be determined directly from the Constitution, and a system that is appropriate to accomplish the aforementioned purposes of the Broadcasting Act, which embody the purpose of Article 21 of the Constitution, came to be discussed and established by the National Diet. It can be said that the discretion in the lawmaking process should be allowed in this meaning.

It can be understood that, as mentioned previously, the mechanism under the dual-structure system composed of a public broadcaster and private broadcasters, in which the plaintiff has been established as the public broadcaster, and the plaintiff’s financial foundation has been made secure by fees for receiving broadcasts borne by reception-equipment installers so that the plaintiff becomes a business entity that is operated autonomously while being based on a democratic and pluralistic basis, was adopted in order to substantially satisfy the people’s right to know under the freedom of expression guaranteed by Article 21 of the Constitution and is a reasonable mechanism befitting of such purpose. Furthermore, even though changes are occurring in environments surrounding broadcasting, since circumstances that indicate that such reasonability has been lost to date still cannot be found, it is apparent that the mechanism is within the range of discretion allowed in the lawmaking process under the Constitution. It cannot be understood that the defendant’s freedom to watch and listen to broadcasts by using reception equipment outside of the frame of such mechanism is guaranteed under the Constitution.

(3) As a specific method to make reception-equipment installers bear fees for receiving broadcasts, as mentioned previously, the Broadcasting Act creates the obligation to pay fees for receiving broadcasts by a reception contract, and with regard to a reception-equipment installer who does not conclude a reception contract voluntarily, ultimately effects a reception contract compulsorily by a judgment ordering the person to manifest his/her intention of acceptance becoming final and binding.

As mentioned before, the creation of the obligation to pay fees for receiving broadcasts by a reception contract fits in the fact that the plaintiff is basically a business entity that is expected to obtain the understanding of reception-equipment installers and to exist with support of the reception-equipment installers’ burden. In fact, for a long period of time after the enforcement of the Broadcasting Act, the plaintiff existed by collecting fees for receiving broadcasts based on reception contracts that had been concluded voluntarily, and had conducted operations to accomplish the purposes of the same Act. From these facts, the method taken by the same Act can be said to be reasonable.

In compelling a person who does not conclude a reception contract voluntarily to conclude one, there are no provisions in the Broadcasting Act on the content of the contract to be compelled to conclude, and the content is to be established by the Broadcast Reception Rules developed by the plaintiff, who is a party. As mentioned before, it should be said that this situation is allowed to exist under the Constitution as a situation within the range necessary and reasonable for accomplishing the purposes of the same Act as mentioned previously, since the content of the reception contract contemplated by the same Act is required to be appropriate in light of the purpose of the compulsion of conclusion of a reception contract and be fair among reception-equipment installers, fitting in the plaintiff’s purposes prescribed in the same Act, and Article 64, paragraph (1) of the Broadcasting Act is construed to simply compel a reception-equipment installer to conclude the reception contract with the above-mentioned content.

(4) From the above reasons, it should be said that Article 64, paragraph (1) of the Broadcasting Act is a provision for compelling the conclusion of a reception contract with the content necessary for the appropriate and fair collection of fees for receiving broadcasts in a way befitting of the plaintiff’s purposes prescribed in the same Act, and does not violate Article 13, Article 21, and Article 29 of the Constitution.

Other reasons for final appeal allege violations of the Constitution, but they lack their premises and do not fall under any of the grounds prescribed in Article 312, paragraph (1) and paragraph (2) of the Code of Civil Procedure.

3. According to the above points, the determination in prior instance related to the arguments of the counsels for the final appeal can be affirmed. Any of the points argued by the counsels for the final appeal cannot be accepted.

III. Reason II-2 for the petition for acceptance of final appeal filed by the counsels for the final appeal of 2014 (Ju) No. 1440, TAKAIKE Katsuhiko and others

1. The point argued by the counsels for the final appeal is that a claim for fees for receiving broadcasts that accrues in the case where a reception contract is effected by a judgment ordering the defendant to manifest the intention of acceptance of a reception contract becoming final and binding is for the period after the effect of such contract and not for the period after the month of installation of reception equipment.

2. As mentioned previously, in the Broadcast Reception Rules, there is a provision to the effect that a person concluding a reception contract must pay prescribed fees for receiving broadcasts starting from the month of installation of reception equipment (I-2 (1) g (b)). As mentioned before, fees for receiving broadcasts should be collected widely and fairly from reception-equipment installers. If the range of fees for receiving broadcasts to be paid varies between a person who concluded a reception contract promptly after the installation pursuant to Article 64, paragraph (1) of the Broadcasting Act and a person who installed reception equipment at the same time but caused a delay in the conclusion of the contract, the variation cannot be said to be fair. For this reason, it can be said that the above-mentioned provision on the accrual of a claim for fees for receiving broadcasts starting from the month of installation of reception equipment by the effect of a reception contract is necessary and reasonable to treat reception-equipment installers fairly and adheres to the purposes of the Broadcasting Act.

Therefore, it should be said that when a reception contract is effected by a judgment ordering the defendant to manifest the intention of acceptance of an offer for a reception contract including the above-mentioned provision becoming final and binding, based on the same contract, a claim for fees for receiving broadcasts for the period after the month of installation of reception equipment accrues.

The determination in prior instance related to the arguments of the counsels for the final appeal can be affirmed. Any of the points argued by the counsels for the final appeal cannot be accepted.

IV. Reason II-1 for the petition for acceptance of final appeal filed by the counsels for the final appeal of 2014 (Ju) No. 1440, TAKAIKE Katsuhiko and others

1. Under the conditions that amounts of fees for receiving broadcasts are set monthly or as amounts for payment six months or 12 months in advance, and they are to be paid in a method in which fees for a term consisting of two months are paid en bloc in the relevant term, or a method in which fees for six months or 12 months are paid en bloc in advance, the period of extinctive prescription for a claim for fees for receiving broadcasts under a reception contract should be construed as five years pursuant to Article 169 of the Civil Code (see 2013 (Ju) No. 2024, Judgment of the Second Petty Bench of the Supreme Court of September 5, 2014, Shumin No. 247, at 159). However, the point argued by the counsels for the final appeal is that if a claim for fees for receiving broadcasts for the period after the month of installation of reception equipment accrues, as mentioned before in III, by the effect of a reception contract, the period of extinctive prescription for such claim for fees for receiving broadcasts commences to run from each due date for performance contemplated initially in the reception contract, and part of a claim for fees for receiving broadcasts pertaining to the claim for principal action has been extinguished by prescription.

2. The extinctive prescription commences to run when it has become possible to exercise the right (Article 166, paragraph (1) of the Civil Code). Since a claim for fees for receiving broadcasts accrues based on the reception contract, it can be said that the plaintiff cannot exercise its claim for fees for receiving broadcasts before the effect of a reception contract. In this respect, since the plaintiff can require a reception-equipment installer who has not concluded a reception contract to conclude a reception contract and can claim fees for receiving broadcasts based on a reception contract that is effected by said requirement, it seems somewhat of an imbalance that among persons who have installed reception equipment but have not paid fees for receiving broadcasts, a claim for fees for receiving broadcasts has the possibility of extinguishment by prescription for a person who has concluded reception contracts, but not for a person who has not concluded reception contracts. In general, however, it is difficult for the plaintiff to promptly know about the existence of a reception-equipment installer unless a reception-equipment installer notifies the plaintiff of the installation of reception equipment. On the other hand, a reception-equipment installer is obliged to conclude a reception contract pursuant to Article 64, paragraph (1) of the Broadcasting Act. Therefore, it is compelling that a claim for fees for receiving broadcasts has no possibility of extinguishment by prescription for a person who has not concluded a reception contract in contrast to a person who has.

Consequently, it is adequate to understand that the extinctive prescription for a claim for fees for receiving broadcasts for the period after the month of installation of reception equipment that accrues based on a reception contract (excluding those due dates for performance which come after the effect of a reception contract) commences to run from the time when the reception contract is effected.

The determination in prior instance related to the arguments of the counsels for the final appeal can be affirmed. Any of the points argued by the counsels for the final appeal cannot be accepted.

V. Conclusion

For the above reasons, since the determination in prior instance, which upheld an alternative claim 2 among the plaintiff’s claims, can be affirmed, each final appeal shall be dismissed.

Accordingly, the judgment has been rendered as set forth in the main text by the unanimous consent of the justices, with the exception of a dissenting opinion by Justice KIUCHI Michiyoshi. In addition, concurring opinions are offered respectively by Justice OKABE Kiyoko and Justice ONIMARU Kaoru, and jointly by Justice KOIKE Hiroshi and Justice KANNO Hiroyuki.



The concurring opinion of Justice OKABE Kiyoko is as follows:

I would like to make a supplementary statement on the defendant’s arguments that Article 64, paragraph (1) of the Broadcasting Act is an advisory provision, and that if it is not construed as an advisory provision, this provision violates the Constitution.

It can be said that the majority opinion understands that a claim for acceptance of a reception contract, which is a right under private law, accrues for the plaintiff by a provision of Article 64, paragraph (1) of the Broadcasting Act. The Broadcasting Act contains provisions on organizations and operations of the plaintiff and other broadcasting entities, and can be characterized as a public law. However, even a public law may have a provision on requirements for the accrual of a private right, and the fact that there are no provisions in the Broadcasting Act on specific measures for the compulsion of conclusion of a reception contract does not become grounds for the provision not having compelling power. The obligation to conclude a reception contract was included in a provision of the Broadcasting Act because the way to secure the plaintiff’s financial foundation was changed in the lawmaking process of the same Act. By reading the provision, it can be understood that the plaintiff obtains a claim for acceptance of a reception contract against a person installing reception equipment by satisfying two requirements: (i) Installation of reception equipment, and (ii) manifestation of intention of an offer for a reception contract by the plaintiff.

If the counterparty does not accept the offer even though the plaintiff exercises its obtained claim for acceptance of a reception contract, the plaintiff may file an action seeking manifestation of intention pursuant to a provision of Article 414, paragraph (2), proviso of the Civil Code. And then, a reception contract is effected when the counterparty is deemed to have manifested his/her intention of acceptance by a judgment becoming final and binding. Article 4, paragraph (1) of the Broadcast Reception Rules has a provision to the effect that a reception contract is effected on the day of installation of reception equipment, but the purpose of the provision should be construed to be stating that a contract to the effect that the installer is obliged to pay fees for receiving broadcasts from the time the installation of reception equipment is effected on the day of the correspondence of manifestation of intentions. Furthermore, from the fact that Article 64, paragraph (1) of the Broadcasting Act stipulates “a person installing reception equipment,” and not “a person receiving broadcasts,” as a requirement for the accrual of a claim for acceptance of a reception contract, it can be said that a status capable of receiving broadcasts by installing reception equipment becomes grounds for the obligation to pay fees for receiving broadcasts.

As seen from the above, Article 64, paragraph (1) of the Broadcasting Act can be construed to compel even a person who does not receive or does not want to receive broadcasts of the plaintiff to conclude a reception contract and to pay fees for receiving broadcasts. The defendant argues that such Article 64, paragraph (1) of the Broadcasting Act violates the Constitution. The Constitution recognizes the freedom of taking in information as a derivative principle of the freedom of expression (see 1988 (O) No. 436, Judgment of the Grand Bench of the Supreme Court of March 8, 1989, Minshu Vol. 43, No. 2, at 89). The freedom of taking in information can be construed to include the freedom of not taking in information (the freedom of not being forced to take in information). Although the defendant is not expressly alleging such freedom of taking in information, and the majority opinion also does not make any references to it, since Article 64, paragraph (1) of the Broadcasting Act does not compel watching and listening of broadcasts of the plaintiff but imposes a monetary burden on the status capable of receiving broadcasts, there is a possibility that the provision is deemed as a restraint to the above-mentioned freedom of taking in information. However, as held in the majority opinion, the system of fees for receiving broadcasts was formed with the ultimate intention of satisfying the people’s right to know substantially and contributing to the sound development of democracy, and in order to fulfill the intention, the system is recognized as a necessary and reasonable mechanism for preventing the plaintiff’s financial aspect from being controlled or affected by specific individuals, organizations, or national agencies, etc.; and therefore, it is an important system for guaranteeing the people’s right to know. On the other hand, since a person installing reception equipment has the status of being capable of watching and listening to broadcasts of the plaintiff in emergencies or other necessary times as long as reception equipment is installed, it can be said that demanding the conclusion of a reception contract from a person installing reception equipment is reasonable in the context of the purpose of fairly sharing fees for receiving broadcasts. From the importance of securing the defendant’s independent financial foundation, the above-mentioned monetary burden is reasonable, and Article 64, paragraph (1) of the Broadcasting Act cannot be said to violate the Constitution even from the aspect of the relationship with the freedom of taking in information.



The concurring opinion of Justice ONIMARU Kaoru is as follows:

My opinion matches the majority opinion but I would like to make a supplementary statement on the following points.

Article 64, paragraph (1) of the Broadcasting Act prescribes that a person installing reception equipment capable of receiving broadcasts of the Japan Broadcasting Corporation must conclude a contract for reception of the broadcasts with the Corporation, but the content of the contract is established by the Broadcast Reception Rules developed by the plaintiff. The conclusion of a reception contract should be compelled as held in the majority opinion, but in light of the fact that this is an exception of the freedom of contract, which is a great principle of private law, and this imposes a monetary burden of payment of fees for receiving broadcasts to a person obliged to conclude the contract, it is ideally desirable that the content of the reception contract be established by law.

Actually, in the Broadcast Reception Rules, there are some provisions that may raise doubts on the compulsion of conclusion of a reception contract. That is, Article 2, paragraph (1) of the Broadcast Reception Rules stipulates that a broadcast reception contract shall be concluded with every household, and in general, treats a household as a unit for concluding the contract, but it is difficult to say that this rule can be directly derived from the provision of Article 64, paragraph (1) of the Broadcasting Act. Furthermore, while a household is treated as a unit for a reception contract, the Broadcast Reception Rules have no provisions on who among a household is obliged to conclude a reception contract. Unless a reception contract is concluded voluntarily, in the case where the conclusion of a reception contract is compelled, it may become an issue when a person obliged to conclude a contract is not specified expressly in a provision. In these times of diversified conditions pertaining to family and residency, a provision that treats a household as a unit for a reception contract may be unable to directly identify who among members in one house is the person obliged to conclude the contract. It is also difficult for a household required to conclude a reception contract to realize that one member of the household is obliged to conclude the contract unless the person obliged to conclude the contract is specified unambiguously by law.



The concurring opinions of Justice KOIKE Hiroshi and Justice KANNO Hiroyuki are as follows:

We agree with the majority opinion but would like to make a supplementary statement on the point referred to in the dissenting opinion of justice, KIUCHI Michiyoshi, on the meaning of Article 64, paragraph (1) of the Broadcasting Act.

The majority opinion points out that the fact that the obligation to pay fees for receiving broadcasts from the month of installation of reception equipment accrues while a reception contract is effected by a judgment ordering manifestation of intention of acceptance becoming final and binding pursuant to Article 174, paragraph (1), main clause of the Civil Execution Act may become an issue. With regard to this point, as stated in the concurring opinion of Justice OKABE Kiyoko, by the above-mentioned judgment becoming final and binding, “a contract to the effect that the installer is obliged to pay fees for receiving broadcasts from the month of the installation of reception equipment” is to be effected at the time when the above-mentioned judgment becomes final and binding (at the time of the correspondence of manifestation of intentions). The judgment is not ordering acceptance of the contract at the time of the installation of reception equipment, which is in the past, nor making the acceptance come into force retroactively. Article 4, paragraph (1) of the Broadcast Reception Contract is construed to have the above-mentioned purpose and does not prevent a reception contract from being effected by a judgment ordering manifestation of intention of acceptance becoming final and binding.

In addition, it is pointed out that abolishment of reception equipment may become an issue. However, since the obligation to conclude a reception contract for the period after the installation has already accrued by the installation of reception equipment in the past, it can be understood that the conclusion of a reception contract can be compelled for the period until the abolishment of reception equipment.

Furthermore, the idea of a claim for return of unjust enrichment or a claim of compensation for loss or damage based on a tort is presented. Such logic is construed to be for collecting an amount equivalent to fees for receiving broadcasts from a reception-equipment installer who does not conclude a reception contract. However, regarding the logic of unjust enrichment, it is doubtful whether enrichment of an amount equivalent to fees for receiving broadcasts accrues to an installer directly by the installment of reception equipment, and it is difficult to say that loss corresponding to the amount of the fees accrues on the plaintiff without a premise of the effect of a reception contract. Regarding the logic of a tort, the installation of reception equipment is treated as a tortious act against the plaintiff, but this legal logic may not fit in the purposes and nature of public broadcasting. Moreover, if the above-mentioned logic is accepted, an amount equivalent to fees for receiving broadcasts can be collected without the voluntary conclusion of a reception contract, but this result may contravene the purpose of Article 64, paragraph (1) of the Broadcasting Act, in which fees for receiving broadcasts are paid through the conclusion of a reception contract. There are many points that require attention in the dissenting opinion, but the Broadcasting Act can be understood to be on the basis that the plaintiff’s financial foundation is to be secured by the plaintiff obtaining the understanding of reception-equipment installers to conclude a reception contract and having them pay fees for receiving broadcasts, and therefore we consider that the idea of the majority opinion, which does not subscribe to the logic that enables collection of an amount equivalent to fees for receiving broadcasts without conclusion of a reception contract, fits in the purposes of the Broadcasting Act.



The dissenting opinion of Justice KIUCHI Michiyoshi is as follows:

Regarding the obligation to conclude a reception contract prescribed in Article 64, paragraph (1) of the Broadcasting Act, I consider that the obligation is not of a nature that can seek a judgment ordering manifestation of intention, in contrast to the majority opinion. The reasons are stated as follows.

1. Requirements for a judgment ordering manifestation of intention to be rendered

(1) Specification of the content of manifestation of intention

In order to order an obligor to manifest his/her intention by a judgment, the content of the manifestation of intention is required to be specified. When a judgment ordering acceptance of a contract becomes final and binding, the manifestation of intention of acceptance is deemed to be made, and a contract is effected. With regard to a continuous contract that does not end after being performed once, since an obligor ordered to accept a contract enters into a contractual relationship by a judgment, a judgment cannot conduct manifestation of intention on behalf of the obligor unless the content of a contract that is to be effected by acceptance is specified.

(2) The time when manifestation of intention comes into force

Article 174 of the Civil Execution Act prescribes that the time when manifestation of intention ordered by a judgment comes into effect is the time when the judgment becomes final and binding, and no one can require a judgment ordering manifestation of intention to set a different effective time.

2. Content of the reception contract prescribed in the Broadcast Reception Rules

The Broadcasting Act contains no provisions on the content of the reception contract, and the Broadcast Reception Rules developed by the plaintiff establish the content. Leaving aside whether this is adequate or not, the content of the reception contract established by the Broadcast Reception Rules is as follows.

(1) Types of reception contracts and fees for receiving broadcasts (Article 1, paragraph (1) and Article 5)

There are three types of reception contracts, and fees for receiving broadcasts are set for each type.

(2) Unit of a reception contract (Article 2)

When reception equipment is installed in a residence, a household is the unit for a contract, and when a household houses several residences, a residence is the unit for a contract. A household is a group of persons who share the same residence and livelihood, or a single person who maintains his/her residence or livelihood independently.

For reception equipment installed in a place other than a residence, such as an office, etc., the place of installation is the unit for a contract, and the unit for the place of installation is a room, automobile, etc.

Even if there are several pieces of reception equipment in one residence of one household, one contract is to be concluded, and fees for receiving broadcasts are to be collected together. Even if there are several pieces of reception equipment in one place of installation other than a residence, one contract is to be concluded, and fees for receiving broadcasts are to be collected together.

(3) Obligation to submit a written reception contract (Article 3)

A person installing reception equipment must submit a written reception contract to the plaintiff without delay, specifying (i) the name and address of the installer, (ii) the date of installation, (iii) type of reception contract, and (iv) types of broadcasts to be received and the number of pieces of reception equipment, etc.

(4) Effect of a reception contract (Article 4, paragraph (1))

A reception contract is to be effected on the day of installation of reception equipment.

(5) Change in the type of the reception contract (Article 4, paragraph (2))

Regarding changes in the type of reception contract, changes due to installation of reception equipment come into force on the day of installation, while changes due to abolishment of reception equipment come into force on the day of submission of a written reception contract in which that effect is specified, which is subject to confirmation by the plaintiff.

(6) Times of starting and ending regarding the obligation to pay fees for receiving broadcasts (Article 5, paragraph (1))

A person concluding a reception contract must pay fees for receiving broadcasts from the month of installation of reception equipment to the month before the month of termination.

(7) Termination of a reception contract (Article 9, paragraph (1) and paragraph (2))

When abolishing reception equipment, the person concluding the reception contract must give notification thereof. When the plaintiff confirms the abolishment, the reception contract is deemed to be terminated on the day of notification.

3. Relationship between provisions in the Broadcast Reception Rules and requirements for a judgment ordering manifestation of intention to be rendered

(1) Specification of the content of the contract by the Broadcast Reception Rules

To render a judgment ordering acceptance of a reception contract, it is necessary to specify the content of the contract to be accepted. A judgment is to order acceptance of a reception contract, the content of which is established by the Broadcast Reception Rules as of the date of the judgment, regardless of whether such point is expressed in the main text of the judgment. Therefore, whether provisions in the Broadcast Reception Rules themselves specify the content of the contract becomes an issue.

(2) Content of the contract established by the Broadcast Reception Rules

The Broadcast Reception Rules follow the premise that a reception-equipment installer submits a written reception contract in which matters mentioned in 2 (3) are specified without delay after the installation, and then a reception contract is effected. As long as a reception contract is effected as such, it is possible to agree that the reception contract is effected retroactively at the time of installation of the reception equipment, and even if there are several pieces of reception equipment in one household and the type of equipment varies, it is possible to specify the person concluding the contract and the type of contract through specifications on the submitted written reception contract.

On the other hand, as mentioned in the following (i) to (iii), even if a reception contract is to be effected by a judgment, it is unable to be effected retroactively at the time of installation of the reception equipment, or to specify the content of the contract (the person concluding the contract, the type of contract, etc.), which is necessary for a judgment to order acceptance, and it is impossible to appropriately respond to a reception-equipment installer who has abolished reception equipment.

(i) Time of effect of a contract and the time in which the obligation to pay fees for receiving broadcasts starts

Article 174, paragraph (1) of the Civil Execution Act prescribes that the time when manifestation of intention comes into effect by a judgment ordering manifestation of intention is the time when the judgment becomes final and binding. A judgment ordering acceptance cannot order acceptance at a previous time, and the time when acceptance comes into effect and the contract is effected is the time when the judgment becomes final and binding. Therefore, it is impossible for a reception contract to be effected at the time of installation of reception equipment as referred to in Article 4, paragraph (1) of the Broadcast Reception Rules.

A claim for fees for receiving broadcasts is a claim for periodic performance (2013 (Ju) No. 2024, Judgment of the Second Petty Bench of the Supreme Court of September 5, 2014, Shumin No. 247, at 159). A claim for fees for receiving broadcasts as a claim for periodic payments that generates a claim for fees for receiving broadcasts as a claim for periodic performance accrues by a reception contract, and the time when such claim accrues is the time when a judgment becomes final and binding. If a reception contract is not effected, a claim for fees for receiving broadcasts as a claim for periodic payments does not exist, and a claim for fees for receiving broadcasts as one of the divisible rights also does not accrue. Therefore, it is impossible to impose the obligation to pay fees for receiving broadcasts from the month of installation of reception equipment as referred to in Article 5 of the Broadcast Reception Rules.

(ii) Person concluding the contract and change in the type of a reception contract

When parents and a child are present in one household, Article 2 of the Broadcast Reception Rules prescribes that as long as there is only one residence, one reception contract is to be concluded even if several pieces of reception equipment are installed, but when the parents and child install or abolish reception equipment, respectively, it is unknown to whom a judgment order to accept the contract is directed. When the types of reception equipment installed respectively vary, it is also unknown what type of contract a judgment orders to accept.

(iii) Relationship with a reception-equipment installer who abolished reception equipment

Since a judgment ordering acceptance cannot order acceptance at a time in the past, the judgment cannot order a person who is not obliged to conclude the contract at the present time to accept the contract. Even for a reception-equipment installer who has concluded a reception contract, if the installer abolishes reception equipment and gives notification thereof, the reception contract is terminated and the contract ends (Article 9 of the Broadcast Reception Rules). Comparing to this system, it is impossible to oblige a reception-equipment installer who has already abolished reception equipment to pay fees for receiving broadcasts after the abolishment. If a judgment ordered a reception-equipment installer who had already abolished reception equipment to accept the contract, it would mean that the judgment is ordering acceptance of a reception contract that should have existed in a past period from the installation of reception equipment to its abolishment. This is equivalent to the creation of a past fact by a judgment, and it is absolutely impossible for a judgment to do this.

Even when the plaintiff files an action claiming acceptance from a reception-equipment installer, a judgment cannot order acceptance if reception equipment is abolished before the conclusion of an oral argument, and the action may become meaningless due to the abolishment of reception equipment.

4. Necessity of fees for receiving broadcasts as the financial source and their relationship with Article 64 of the Broadcasting Act

Even at the time of enactment of the Broadcasting Act, Article 736 of the Code of Civil Procedure contained the same provision as Article 174 of the current Civil Execution Act on a judgment ordering manifestation of intention. In the enactment of the Broadcasting Act, regarding the obligation to conclude a reception contract prescribed in the same Act, there may be the intention of having a reception contract be effected by a judgment ordering manifestation of intention and thereby secure fees for receiving broadcasts. However, this point, and whether a provision in the Broadcasting Act that was actually enacted are capable of compelling conclusion of a reception contract by a judgment are different issues.

Since the content of the reception contract is established by the Broadcast Reception Rules, and the terms of the reception contract based on the Broadcast Reception Rules have been authorized by the Minister of Internal Affairs and Communications after consultation with the Radio Regulatory Council, it can be understood that the Broadcast Reception Rules embody the purpose of Article 64, paragraph (1) of the Broadcasting Act. However, as mentioned in the preceding section, the content of the Broadcast Reception Rules is not content that a judgment can order to accept, and they would rather premise the voluntary conclusion of the contract. Article 64, paragraph (1) of the Broadcasting Act does not prescribe obligation that enables a judgment to order acceptance of a reception contract.

5. Range of a claim for fees for receiving broadcasts that accrues by a reception contract effected by a judgment

The majority opinion believes the reason why a claim for receiving broadcasts for the period after the month of installation of reception equipment accrues is fairness between a person who promptly concluded a reception contract and a person who caused a delay in the conclusion of a reception contract. This may become a reason for reasonability of the starting time of the obligation to pay fees for receiving broadcasts commencing from the month of installation of reception equipment as long as the reception contract is concluded voluntarily, but does not become a reason for a provision of the Broadcasting Act providing requirements that enable a judgment to order acceptance.

Since it is impossible to retroactively effect a reception contract, if a judgment created an obligation to pay fees for receiving broadcasts for the period before the conclusion of the reception contract, this would mean a judgment is not ordering an addressee to manifest his/her intention of acceptance but to bear obligation. This result contravenes the fact that the Broadcasting Act stipulates obligation to conclude a reception contract but does not stipulate obligation to pay fees for receiving broadcasts.

6. Starting time of extinctive prescription for a claim for fees for receiving broadcasts

The majority opinion believes that the extinctive prescription for a claim for fees for receiving broadcasts based on a reception contract effected by a judgment commences to run from the time when the reception contract is effected by a judgment becoming final and binding, and that it is inevitable that a claim for fees for receiving broadcasts does not have a possibility of extinguishment by prescription for a person who did not conclude a reception contract voluntarily and who is ordered to accept the contract by a judgment.

As stated in the majority opinion, a reception-equipment installer is a person who is obliged to conclude a reception contract but does not perform the obligation. However, even the obligation to compensate for loss or damage caused by a tort is extinguished after 20 years have elapsed since the tortious act, regardless of whether the obligee knows about the tort or not, and the obligation to return unjust enrichment is extinguished after 10 years have elapsed since the occurrence of the enrichment, regardless of whether the obligee knows about the enrichment. Compared to these systems, there is no reason for the installer to bear an obligation that may not extinguished by prescription.

7. Meaning in private law of obligation to conclude a reception contract in the Broadcasting Act

Not allowing the obligation to conclude a reception contract prescribed in Article 64, paragraph (1) of the Broadcasting Act to be compelled by a judgment does not mean that the obligation has no legal effect.

Fees for receiving broadcasts generated from reception contracts are the financial source supporting the plaintiff’s operation, and since this mechanism is derived from the purposes of the Broadcasting Act prescribing about the plaintiff, there is a provision on the obligation to conclude a reception contract. Therefore, from the system in which a person installing reception equipment is obliged to conclude the reception contract, it can be said that the law is recognizing “no occurrence of a situation capable of receiving broadcasts of the plaintiff by installing reception equipment without concluding a reception contract” as an interest of the plaintiff, and this interest of the plaintiff is a “legally protected interest” (Article 709 of the Civil Code). Installation of reception equipment without concluding a reception contract infringes such interest, and if it is done intentionally or negligently, the act constitutes tort. Regarding damages incurred by the plaintiff thereby, it can be understood that the reception-equipment installer is liable.

In a similar way, “getting in a situation capable of receiving broadcasts of the plaintiff by installing reception equipment” is, for a reception-equipment installer, an interest generated by the services of the plaintiff and lacks the legal ground of a reception contract. Regarding loss incurred by the plaintiff thereby, it can be understood that the reception-equipment installer is obliged to return unjust enrichment.
Justice TERADA Itsuro

Justice OKABE Kiyoko

Justice ONUKI Yoshinobu

Justice ONIMARU Kaoru

Justice KIUCHI Michiyoshi

Justice YAMAMOTO Tsuneyuki

Justice YAMASAKI Toshimitsu

Justice IKEGAMI Masayuki

Justice OTANI Naoto

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki

Justice KANNO Hiroyuki

Justice YAMAGUCHI Atsushi

Justice TOKURA Saburo

Justice HAYASHI Keiichi
The Other Case Number(s): 2014(Ju)1440, 2014(Ju)1441
(This translation is provisional and subject to revision.)