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2016 (Gyo-Hi) 404

2017.12.18
2016 (Gyo-Hi) 404
Minshu Vol. 71, No. 10
Judgment on whether or not an action seeking revocation of rejections of applications for issuance of an Atomic Bomb Survivor’s Handbook and rejections of applications for certification for a healthcare allowance and an action seeking imposition of obligations to issue an Atomic Bomb Survivor’s Handbook in addition to seeking the aforementioned revocation, each filed under the Atomic Bomb Survivors’ Assistance Act, are inheritable in cases where the applicants died during the pendency of the actions
Case seeking issuance of Atomic Bomb Survivor’s Handbooks, etc. (2016(Gyo-Hi)404-1)
Judgment of the First Petty bench, partly quashed and decided by the Supreme Court and partly dismissed with prejudice on the merits
Fukuoka High Court, Judgment of May 23, 2016
An action seeking revocation of rejections of applications for issuance of an Atomic Bomb Survivor’s Handbook and rejections of applications for certification for a healthcare allowance and an action seeking imposition of obligations to issue an Atomic Bomb Survivor’s Handbook in addition to seeking the aforementioned revocation, each filed under the Atomic Bomb Survivors’ Assistance Act, are inherited by the heirs of the applicants in cases where the applicants died during the pendency of the actions.

(There is a concurring opinion.)
Article 124, paragraph (1) of the Code of Civil Procedure, Article 2, paragraph (2) of the Atomic Bomb Survivors’ Assistance Act (prior to amendment by Act No. 78 of 2008), and Article 2, paragraphs (1) and (3) and Article 27 of the Atomic Bomb Survivors’ Assistance Act



Code of Civil Procedure

(Discontinuation and Taking Over of Action)

Article 124 (1) If any of the grounds listed in the following items exist, an action shall be discontinued. In this case, the person specified in the respective items shall take over the action:

(i) A party's death: The party's heir, administrator of the inherited property or any other person who should continue the action under laws or regulations

(ii) Extinction by merger of a juridical person who is a party: The juridical person established by the merger or juridical person surviving the merger

(iii) A party's loss of capacity to sue or be sued, or a statutory agent's death or extinction of the authority of representation: The party's statutory agent or the party who has acquired the capacity to sue or be sued

(iv) Termination of duties concerning a trust assigned to each of the persons listed in (a) to (c) below: The respective person specified in (a) to (c)

(a) The trustee who is a party: A new trustee or the trust property administrator or incorporated trust property administrator

(b) The trust property administrator or incorporated trust property administrator who is a party: A new trustee or a new trust property administrator or new incorporated trust property administrator

(c) The trust caretaker who is a party: The beneficiary or a new trust caretaker

(v) A person who has a certain status and acts as a party to the suit in his/her own name on behalf of another has lost his/her status upon death or on any other grounds: A person who has the same status

(vi) All appointed parties' loss of status upon death or on any other grounds: All appointers or a newly appointed party

Atomic Bomb Survivors’ Assistance Act (prior to amendment by Act No. 78 of 2008)

(Atomic Bomb Survivor’s Handbook)

Article 2

(2) The prefectural governor shall examine the applicant based on the application filed under the provisions of the preceding paragraph, and shall, if the prefectural governor finds that the applicant falls under any of the items of the preceding article, issue an Atomic Bomb Survivor’s Handbook to the applicant.

Atomic Bomb Survivors’ Assistance Act

Article 2

(1) A person who wishes to receive an Atomic Bomb Survivor’s Handbook shall file an application with the governor of the prefecture in which the person’s place of residence (or present location if he/she does not have a place of residence) is located.

(3) The prefectural governor shall examine the applicant based on the application filed under the provisions of the preceding two paragraphs, and shall, if the prefectural governor finds that the applicant falls under any of the items of the preceding article, issue an Atomic Bomb Survivor’s Handbook to the applicant.

Article 27 (1) The prefectural governor shall provide a healthcare allowance to a person who is an atomic bomb survivor and who has hematopoietic dysfunction, hepatic dysfunction or any of the other diseases designated by Order of the Ministry of Health, Labour and Welfare (excluding disease whose cause is known not to be radiation from an atomic bomb); provided, however, that this shall not apply if such person already receives a special medical allowance, special allowance or allowance for atomic bomb microcephaly.

(2) If the person specified in the preceding paragraph wishes to receive a healthcare allowance, he/she shall obtain the prefectural governor’s certification that he/she meets the requirements set forth in the said paragraph.

(3) If the prefectural governor provides the certification as referred to in the preceding paragraph, he/she shall also specify the period during which the relevant disease is expected to continue. In such case, such period shall be specified within the period prescribed by the Minister of Health, Labour and Welfare for each of the types of diseases mentioned in paragraph (1).

(4) A healthcare allowance shall be provided on a monthly basis in the amount of 33,300 yen per month.

(5) The provision of a healthcare allowance shall commence from the month immediately following the month to which the date on which the person who obtained the certification as referred to in paragraph (2) filed an application for such certification belongs and shall end in the month to which the date on which the period specified pursuant to the provisions of paragraph (3) expires for the said person counting from the date of the aforementioned application (or, if the person ceases to meet the requirements set forth in paragraph (1) before the date of expiration of such period, the date of such cessation) belongs.
1. Of paragraphs 2, 7 and 8 of the judgment of prior instance, the part related to the action seeking imposition of obligations to issue an Atomic Bomb Survivor’s Handbook is quashed and, for that part, the appeal of the appellants listed in the respective “Appellant” sections of Lists of Heirs Nos. 1 and 2 attached hereto is dismissed with prejudice on the merits.

2. The remaining part of the appellants’ final appeal is dismissed with prejudice on the merits.

3. The costs of appeal and final appeal incurred between the appellants listed in the “Appellant” section of List of Heirs No. 1 attached hereto and the appellees, the total cost of actions incurred between the appellants listed in the “Appellant” section of List of Heirs No. 2 attached hereto and the appellees, and the cost of final appeal incurred between the other appellants and the appellees shall be borne by the appellants.
Reasons for the petition for acceptance of final appeal filed by the counsels for the appeal, TATSUTA Koichiro et al. (excluding the part excluded)



1. In this case, the persons listed in the List of Applicants attached hereto who allege to have been exposed to radiation from the atomic bomb dropped in Nagasaki City (hereinafter referred to as the “Nagasaki Atomic Bomb”) (hereinafter referred to as the “Applicants”) filed applications for issuance of an Atomic Bomb Survivor’s Handbook and applications for certification for a healthcare allowance, in each case under the Atomic Bomb Survivors’ Assistance Act (hereinafter referred to as the “ABSAA”), and received from the mayor of Nagasaki City or the governor of Nagasaki Prefecture dispositions to reject applications for issuance of an Atomic Bomb Survivor’s Handbook (hereinafter referred to as the “Dispositions to Reject Applications for Issuance”) and dispositions to reject applications for certification for a healthcare allowance (hereinafter referred to as the “Dispositions to Reject Applications for Certification,” and together with the Dispositions to Reject Applications for Issuance, hereinafter referred to collectively as the “Dispositions”). In response, the Applicants seek, among other things, revocation of the Dispositions and imposition of obligations to issue an Atomic Bomb Survivor’s Handbook, alleging, among other things, that they qualify as atomic bomb survivors as set forth in Article 1, item (iii) of the said act. For those of the Applicants who died before the conclusion of this case’s oral argument in the court of prior instance, their respective heirs have filed applications for succession to these actions, alleging that they have succeeded to the status of the deceased Applicants in these actions by inheritance.

2. (1) The ABSAA defines atomic bomb survivors as persons who fall under any of the items of Article 1 of the ABSAA and who have received an Atomic Bomb Survivor’s Handbook, and sets these atomic bomb survivors as the target of the assistance provided under the act. Item (i) of the said article lists persons who were located, at the time of the dropping of the atomic bomb, within the territory of Hiroshima City or that of Nagasaki City, as the case may be, or within any of such geographical areas adjacent to either of these territories as are designated by a Cabinet Order. Item (ii) of the said article lists persons who were located, during the period prescribed by a Cabinet Order commencing from the time of the dropping of the atomic bomb, within any of the geographical areas prescribed by a Cabinet Order out of the territories and geographical areas mentioned in item (i) of the said article. Item (iii) of the said article lists persons who do not fall under either of item (i) or (ii) of the said article but were under circumstances, at the time of or after the dropping of an atomic bomb, where they would be physically affected by radiation from the atomic bomb. In this regard, Article 1, paragraph (1) of the Order for Enforcement of the Atomic Bomb Survivors’ Assistance Act (hereinafter referred to as the “ABSAA Enforcement Order”) provides that the geographical areas prescribed by a Cabinet Order as referred to in Article 1, item (i) of the ABSAA shall be the geographical areas listed in Table 1 of the said enforcement order as at the time of the dropping of the atomic bombs.

Article 2, paragraph (1) of the ABSAA provides that a person who wishes to receive an Atomic Bomb Survivor’s Handbook shall file an application with the governor of the prefecture in which the person’s place of residence or equivalent is located (or, in the case of Nagasaki City, with the mayor of Nagasaki City under Article 49; the same applies hereinafter). Article 2, paragraph (3) of the ABSAA (or Article 2, paragraph (2) of the ABSAA prior to amendment by Act No. 78 of 2008) provides that the prefectural governor who received the application as referred to in paragraph (1) of the said article shall issue an Atomic Bomb Survivor’s Handbook to the applicant if the prefectural governor finds that the applicant falls under any of the items of Article 1 of the ABSAA.

(2) Article 27, paragraph (1) of the ABSAA provides that the prefectural governor shall provide a healthcare allowance to a person who is an atomic bomb survivor and who has hematopoietic dysfunction, hepatic dysfunction or any of the other diseases designated by Order of the Ministry of Health, Labour and Welfare (excluding disease whose cause is known not to be radiation from an atomic bomb), unless such person already receives a special medical allowance, etc. Paragraph (2) of the same article provides that if the person specified in paragraph (1) of the said article wishes to receive a healthcare allowance, he/she shall obtain the prefectural governor’s certification that he/she meets the requirements set forth in the said paragraph. Paragraph (3) of the said article provides that if the prefectural governor provides the aforementioned certification, he/she shall also specify the period during which the relevant disease is expected to continue. Paragraph (4) of the said article provides that a healthcare allowance shall be provided on a monthly basis in the uniform amount. Paragraph (5) of the said article provides that the provision of a healthcare allowance shall commence from the month immediately following the month to which the date on which the person who obtained the aforementioned certification filed an application for such certification belongs and shall end in the month to which the date on which the aforementioned period expires for the said person counting from the date of the aforementioned application (or, if the person ceases to meet the aforementioned requirements before the date of expiration of such period, the date of such cessation) belongs.

3. An outline of the facts and other circumstances duly confirmed by the court of prior instance is as follows:

(1) The Applicants are persons who were located, at the time of the dropping of the Nagasaki Atomic Bomb and for a considerable period thereafter, outside the territory of Nagasaki City at that time and within geographical areas located between 7.5 km and 12 km, inclusive, from the epicenter (hereinafter referred to as the “Geographical Areas”). None of the Geographical Areas is included in the geographical areas listed in Table 1 of the ABSAA Enforcement Order.

(2) By June 15, 2010, the Applicants filed applications for issuance of an Atomic Bomb Survivor’s Handbook and applications for certification for a healthcare allowance with the mayor of Nagasaki City or the governor of Nagasaki Prefecture. By June 25 of the same year, however, they received the Dispositions to reject these applications.

(3) Of the Applicants, those who are listed in List of Applicants No. 2 attached hereto and those who are listed in the respective “Decedent” sections of Lists of Heirs Nos. 1 and 2 attached hereto filed this case seeking, among other things, revocation of the Dispositions and imposition of obligations to issue an Atomic Bomb Survivor’s Handbook, and those who are listed in the “Decedent” section of List of Heirs No. 3 filed this case seeking, among other things, revocation of the Dispositions. Those who are listed in the respective “Decedent” sections of Lists of Heirs Nos. 1 through 3 (hereinafter referred to as the “Decedents”) died on the dates specified in the respective “Date of decease” sections before the conclusion of the oral argument in the court of prior instance, and were succeeded by the respective appellants specified in the respective “Appellant” sections (hereinafter referred to as the “Heirs”). The Heirs then filed applications for succession to the actions, alleging that they succeeded to the status of the Decedents in this case by inheritance.

4. Based on the facts and other circumstances described above, the court of prior instance ruled as follows in summary with regard to the action seeking revocation of the Dispositions on the Decedents and seeking imposition of obligations to issue an Atomic Bomb Survivor’s Handbook to each of the Decedents:

The legal interests to be recovered by revocation of the Dispositions and the legal interests in seeking imposition of obligations to issue an Atomic Bomb Survivor’s Handbook consist of the Applicants’ eligibility to receive the assistance (including the provision of a healthcare allowance) under the ABSAA as atomic bomb survivors under the said act. The eligibility to receive the assistance under the ABSAA is understood as specific and personal to atomic bomb survivors. Therefore, the Heirs cannot succeed to such eligibility as the Decedents’ heirs, and the Heirs’ action seeking revocation of the Dispositions and that seeking imposition of obligations to issue an Atomic Bomb Survivor’s Handbook automatically terminate upon decease of the Decedents.

5. However, the court of prior instance’s rulings described above are not acceptable, for the following reasons:

(1) The ABSAA is focused on health aspects of atomic bomb survivors and mainly provides for the provision of necessary medical care using public funds. Seen from this perspective, the ABSAA can be seen to have a nature similar to other legislation providing for the provision of public medical benefits and serving as so-called social security law. On the other hand, considering that the ABSAA was enacted in light of the fact that the health damage caused by radiation generated as a result of the dropping of the atomic bombs is distinct harm that is different from any other wartime damage, the ABSAA has another aspect in which the national government, which was the entity that waged the war, strives to relieve such distinct wartime damage at its responsibility. In this regard, it is undeniable that a consideration substantially similar to national reparations underlies the system provided by the ABSAA.

The purpose of the healthcare allowance provided under the ABSAA is to contribute to the health and welfare of atomic bomb survivors who continue to suffer from hematopoietic dysfunction and other disorders caused by the effects of radiation from the atomic bombs and live in anxiety, by providing them with a fixed monthly allowance (see the preamble and Article 27 of the ABSAA). With respect to the entitlement to such healthcare allowance, the said article provides that a person who is an atomic bomb survivor and who has any of the designated diseases is, subject to his/her certification by the prefectural governor as set forth in paragraph (2) of the same article, entitled to receive a certain amount of money from the month immediately following the month to which the date of application for such certification belongs. In light of these provisions, it is fair to say that the entitlement to such allowance is stipulated as a right to seek specific benefits whose provision is subject to the satisfaction of the specified requirements.

Considering the nature of the ABSAA and the purpose and content of the healthcare allowance described above, the entitlement to a healthcare allowance for which an application for certification has been filed in accordance with the said article cannot be regarded as a right personal to the person who filed the application but should be inherited. Therefore, it is appropriate to understand that an action seeking revocation of rejections of applications for issuance of an Atomic Bomb Survivor’s Handbook and rejections of applications for certification for a healthcare allowance and an action seeking imposition of obligations to issue an Atomic Bomb Survivor’s Handbook in addition to seeking the aforementioned revocation do not automatically terminate upon decease of the applicants but are inherited by the heirs of the applicants in cases where the applicants died during the pendency of the actions.

(2) Let us apply the above arguments to this case. Before their death, the Decedents filed applications for issuance of an Atomic Bomb Survivor’s Handbook and applications for certification for a healthcare allowance. Of the Decedents, those who are listed in Lists of Heirs Nos. 1 and 2 attached hereto died during the pendency of the action seeking revocation of the dispositions that rejected these applications and seeking imposition of obligations to issue an Atomic Bomb Survivor’s Handbook, and those who are listed in List of Heirs No. 3 attached hereto died during the pendency of the action seeking such revocation, as described in 3 (3) above. Therefore, the respective Heirs who succeeded the Decedents should be allowed to succeed to the aforementioned respective actions.

6. For the reasons described above, such part of the judgment of prior instance as relates to the action seeking revocation of the Dispositions on the Decedents and seeking imposition of obligations to issue an Atomic Bomb Survivor’s Handbook to each of the Decedents contains illegality in that it erred in the interpretation and application of law. The reasons for the petition for acceptance of final appeal are well-grounded to this extent.

Nevertheless, the court of prior instance made a hypothetical ruling on the merits of the claim for revocation of the Dispositions on the Decedents, in which the court ruled that, according to scientific knowledge at the time of conclusion of the oral argument in the court of prior instance, persons who were not located in geographical areas within approximately 5 km from the epicenter at the time when the Nagasaki Atomic Bomb was dropped cannot be considered to have been under circumstances where they might have incurred health damage due to radiation from the atomic bomb immediately as a result of being located at a certain place at that time, and that the court cannot presume that the Applicants had acute symptoms caused by radiation from the Nagasaki Atomic Bomb after its dropping, and that, therefore, the court cannot find the appellants’ argument that the Applicants fall under Article 1, item (iii) of the ABSAA is well-grounded. In light of evidence revealed in the records of this case, the court of prior instance’s rulings described above are acceptable, and it is obvious that the claim for revocation of the Dispositions on the Decedents is groundless. Therefore, such claim should inevitably be dismissed with prejudice on the merits. With respect to the claims of the appellants listed in the respective “Appellant” sections of Lists of Heirs Nos. 1 and 2 attached hereto, although the judgment of prior instance contains illegality in that it erred in the interpretation and application of law by declaring conclusion of the action related to such claims, such illegality does not affect the conclusion owing to the principle of prohibition against change to the disadvantage of the appellant. As for the aforementioned claim for revocation by the appellants listed in the “Appellant” section of List of Heirs No. 3 attached hereto, although the judgment in the first instance contains illegality in that it erred in the interpretation and application of law as described above by declaring conclusion of the action related to such claim, an appeal from such action can only be dismissed with prejudice on the merits due to the principle of prohibition against change to the disadvantage of the appellant. Therefore, the court of prior instance’s judgment which dismissed such appeal with prejudice on the merits is acceptable in conclusion. This follows that such part of the final appeal as relates to the aforementioned claim for revocation by the appellants listed in the respective “Appellant” sections of Lists of Heirs Nos. 1 through 3 attached hereto should be dismissed with prejudice on the merits.

Similarly, for the reasons described above, the court of prior instance’s decision to declare conclusion of the action seeking imposition of obligations to issue an Atomic Bomb Survivor’s Handbook, which was filed by the appellants listed in the respective “Appellant” sections of Lists of Heirs Nos. 1 and 2 attached hereto, contain violations of law that obviously affect its judgment, making it inevitable to quash such part of the judgment of prior instance as relates to such action. The said action is unlawful in that it fails to satisfy the requirements for an action specified in Article 37-3, paragraph (1), item (ii) of the Administrative Case Litigation Act. The judgment in the first instance is reasonable in dismissing such action without prejudice and, therefore, such part the aforementioned appellants’ appeal as relates to such action should be dismissed with prejudice on the merits. However, since such action is unlawful as described above, its defects cannot be corrected. The Court thus makes its judgment without holding an oral argument (see Supreme Court, 2001 (Gyo-Tsu) 205 and 2001 (Gyo-Hi) 202, Judgment of the Third Petty bench of December 17, 2002, Saibanshu Minji No. 208, p. 581).

As for the part of the final appeal seeking declaratory judgment of the status of atomic bomb survivors and claiming a healthcare allowance, the Court dismisses such part with prejudice on the merits, since it is groundless. As for the part of the final appeal making all other claims, the Court dismisses such part with prejudice on the merits, either because the corresponding reasons for the petition for acceptance of final appeal were excluded in the decision to accept the final appeal or because it is obvious that the appellants’ arguments are groundless for the reasons described above.

Accordingly, the Court unanimously decides as set forth in the main text. However, there is a concurring opinion of one of the justices, KIZAWA Katsuyuki.

The concurring opinion of the justice, KIZAWA Katsuyuki, is as follows:

I would like to add a few comments to supplement the Court opinion regarding the legal nature of the entitlement to a healthcare allowance under the ABSAA.

1. While the judgment of prior instance is based on the premise that a consideration similar to national reparations underlies the assistance provided by the ABSAA, the court of prior instance ruled that the primary nature of the ABSAA is social security law which is focused on health aspects of atomic bomb survivors and mainly provides for the provision of necessary medical care using public funds, and that, therefore, the entitlement to a healthcare allowance under the ABSAA is personal to atomic bomb survivors.

However, the ABSAA was established in light of the fact that: the health damage caused by radiation generated as a result of the dropping of the atomic bombs, which are an unparalleled weapon of destruction, is unprecedentedly unique and serious; the cause of such damage can be traced back to the war, which was the national government’s action; and that, furthermore, most atomic bomb survivors are left with scars and sequelae incurable for the rest of their lives and, in their daily lives, are still placed and suffer in situations that are more unstable than those of war victims in general. As such, the ABSAA has an aspect in which the national government, which was the entity that waged the war, strives to relieve such unique and grave wartime damage at its responsibility. This is the very point based on which a consideration substantially similar to national reparations should be understood as underlying the system provided by the ABSAA. As for the healthcare allowance, the ABSAA provides that a fixed allowance shall be uniformly provided to atomic bomb survivors who meet certain requirements, considering the aforementioned uniqueness and graveness of the health damage caused by radiation and considering that atomic bomb survivors continue to suffer from hematopoietic dysfunction and other disorders caused by the effects of radiation, and live in anxiety. It is thus undeniable that the entitlement to such allowance is stipulated as having the nature of a proprietary right.

In addition, while the ABSAA prohibits the entitlement to a healthcare allowance from being transferred or attached (Articles 44 and 45), it is not fair to say that it is inconsistent with the spirit and purpose of the act to allow the applicant’s heir to inherit, and receive such allowance from, the entitlement which has become specifically calculable as a result of the application for certification for such allowance. Similarly, while Article 8 of the Order for Enforcement of the Atomic Bomb Survivors’ Assistance Act provides that an Atomic Bomb Survivor’s Handbook shall be returned upon decease of the relevant atomic bomb survivor, it would not be fair to say that the fact that the ABSAA Enforcement Order contains such provisions makes the entitlement to a healthcare allowance for which an application for certification has been filed personal to atomic bomb survivors, considering the fact that such entitlement is stipulated as specifically accruing upon the satisfaction of certain requirements as described above.

2. Even if a certain benefit is broadly described as having the nature of social security, whether or not the entitlement to such benefit is personal cannot be judged without considering, among other things: the purpose and legislative background of the law which provides for the provision of such benefit; the nature of such benefit; what the specific provisions on the provision of the benefit are like; and whether or not allowing the entitlement to the benefit to be inherited is in line with the spirit and purpose of the law. It is then appropriate to understand that a benefit like the healthcare allowance under the ABSAA is inheritable, because a consideration similar to national reparations underlies the allowance system and because the allowance is a fixed monetary allowance accruing subject to the satisfaction of certain requirements and intends, in part, to provide economic assistance to the living of atomic bomb survivors.

In this regard, prior to the enactment of the ABSAA, a healthcare allowance was supposed to be provided to atomic bomb survivors satisfying certain requirements under the Act on Special Measures for Atomic Bomb Survivors. Under the said act, the order for enforcement of the same act imposed certain income limitations. The criteria for the income limitations were relaxed in phases, until the income limitations were completely removed with the enactment of the ABSAA. In light of this course of events and the provisions of current laws, therefore, it has become clearer under current laws that the entitlement to a healthcare allowance is not personal to atomic bomb survivors.

3. From the above follows that even assuming that the primary nature of the ABSAA is social security law which is focused on health aspects of atomic bomb survivors and mainly provides for the provision of necessary medical care using public funds, this should not be sufficient to affect the rulings described above.
Justice KIZAWA Katsuyuki

Justice IKEGAMI Masayuki

Justice OTANI Naoto

Justice KOIKE Hiroshi

Justice YAMAGUCHI Atsushi
(This translation is provisional and subject to revision.)