2019.02.14

2018 (Ju) 69

Minshu Vol. 73, No. 2

Judgment concerning the method to determine whether or not it is appropriate to file a claim for state redress on the grounds that the punishment imposed and other measures taken against a member of an assembly of an ordinary local public government infringes the member's rights and interests protected by private law

Case seeking compensation for loss or damage

Judgment of the First Petty Bench, quashed and decided by the Supreme Court

Nagoya High Court, Judgment of September 14, 2017

1. Whether or not it is appropriate to file a claim for state redress on the grounds that the punishment imposed and other measures taken against a member of the assembly of an ordinary local public government infringes the member's rights and interests protected by private law should be determined by respecting and using as the basis the autonomous determination made by the assembly, as long as the measures are merely a matter of internal discipline of the assembly.

2. Under the circumstances where a decision to issue a stern warning against a member of a city assembly by the management board of such assembly is a measure taken by the city assembly against its member's acts based on the political ethics guidelines provided by the city assembly and thus does not have any particular legal force, the appropriateness of such decision should be determined by respecting the autonomous determination of the assembly and such decision cannot be considered to be illegal exercise of public authority.

(Regarding 1 and 2) Article 1, paragraph (1) of the State Redress Act and Article 3, paragraph (1) of the Court Act



State Redress Act

Article 1, paragraph (1)

(1) When a public officer who exercises the public authority of the State or of a public entity has, in the course of his/her duties, unlawfully inflicted damage on another person intentionally or negligently, the State or public entity shall assume the responsibility to compensate therefor.



Court Act

(Jurisdiction of Courts)

Article 3, paragraph (1)

(1) Courts shall, except as specifically provided for in the Constitution of Japan, decide all legal disputes, and have such other powers as are specifically provided for by law.

Of the judgment in prior instance, the part against the appellant of final appeal is quashed.

For the part referred to in the preceding paragraph, the appeal to the court of second instance filed by the appellee of final appeal is dismissed.

The costs of the appeal and the final appeal shall be borne by the appellee of final appeal.

Reasons for a petition of acceptance of final appeal stated by the counsels for final appeal, NISHIZAWA Hiroshi, et al.

1. In this case, the appellee, who is a member of the city assembly of the appellant (Nabari City) (hereinafter the Nabari city assembly is referred to as the "city assembly" and the chairperson and a member thereof are referred to as the "city assembly chairperson" and a "city assembly member," respectively) claimed against the appellant payment of solatium, etc. pursuant to Article 1, paragraph (1) of the State Redress Act, based on an allegation that the appellee was defamed due to the act of the management board of the Nabari City assembly (hereinafter referred to as the "assembly's management board") of deciding to issue a stern warning against the appellee (hereinafter referred to as the "Measure") and the city assembly chairperson's act of publicizing it (hereinafter these acts are collectively referred to as the "Measures, etc.").

2. The outline of the facts lawfully determined by the court of prior instance is as follows.

(1) The appellee is a city assembly member and belongs to the education and welfare committee, which is a permanent committee.

(2)A. On November 11, 2014, a proposal to conduct an inspection tour as described below (hereinafter referred to as the "Inspection Tour") was made at the education and welfare committee. Following subsequent discussions, on December 18, 2014, the education and welfare committee chairperson requested the city assembly chairperson to approve dispatch of commissioners for the Inspection Tour. The city assembly chairperson approved such dispatch on December 18, 2014, and issued a business trip order to all of the commissioners of the education and welfare committee.

Time schedule: From January 28 to January 30, 2015

Training content:

(i) Kurashiki City, Okayama Prefecture: Care support point system

(ii) Okayama City: Efforts for reducing the amount of waste

(iii) City of Kitakyushu: Efforts for network connecting people’s lives

Participating commissioners: All commissioners of the education and welfare committee (including the appellee)

B. The Inspection Tour was conducted on the dates described in A. above. However, the appellee submitted to the city assembly chairperson an absence application stating that the appellee considers that the Inspection Tour should not be conducted in light of the financial condition, etc. of the appellant and absented him/herself from the Inspection Tour.

(3) On February 4, 2015, the assembly's management board decided to issue a stern warning against the appellee on the grounds of the appellee's absence from the Inspection Tour (the Measure). In addition, the management board prepared a written notice of a stern warning disposition (hereinafter referred to as the "Written Notice") under the name of the city assembly chairperson which contained the following statements: [i] the appellee is subject to a stern warning pursuant to the provisions of the political ethics guidelines for the members of the Nabari City assembly (Public Notice No. 1 of the Nabari City Assembly; hereinafter referred to as the "Guidelines") due to reasons such as that, although the Inspection Tour was a public service based on the Meeting Rules of Nabari City Assembly (Rules of Nabari City Assembly No. 1 of 1996; hereinafter referred to as the "Rules"), the appellee absented him/herself from it without reasonable grounds; and [ii] the appellee is strictly required to fulfill his/her responsibilities as a city assembly member based on an accurate understanding of public services.

On February 4, 2015, the city assembly chairperson read aloud the Written Notice at the chairperson’s office in the presence of five to six newspaper reporters, who made requests to conduct interviews after knowing of the Measure, in addition to the chairperson and vice-chairperson of the assembly's management board, and delivered the Written Notice to the appellee.

(4)A. Article 90 of the Rules provides that when a commissioner of a committee is unable to attend a meeting due to any accident, he/she must notify the committee chairperson of that fact with the grounds therefor before the meeting starts on the relevant day. In addition, Article 105 of the Rules provides that, when a committee intends to dispatch a commissioner for examination or survey, it must submit to the chairperson a written request for approval of dispatch describing the date, place, purpose and expenses of the dispatch and obtain, in advance, approval therefrom.

B. Article 2 of the Guidelines provides that a city assembly member must comply with the following political ethics standards and stipulates, as one of such standards, that city assembly members should fulfill their responsibilities in accordance with the spirit of local autonomy and the Rules (item (ii)). Article 3 of the Guidelines provides that, in the case of violation of the Guidelines, recommendations and other necessary measures can be taken, while Article 4 of the Guidelines provides that the Guidelines are to be applied by the assembly's management board.

3. The court of prior instance determined as summarized below based on the abovementioned facts and partially upheld the appellee's claim.

(1) The appellee's claim is a claim seeking state redress based on the grounds of infringement of a private right, i.e., right of fame, and has not been made to directly question the right and wrong of the matters which the assembly independently and autonomously decided. In addition, the appellee refused to participate in the Inspection Tour based on his/her political conviction by questioning the necessity of conducting the Inspection Tour which accompanies public spending. Therefore, in light of the actual circumstances of the dispute, the abovementioned claim is directly connected to the legal order of general citizens questioning serious infringement of rights, which are freedom of movement and freedom of thought and creed, that are secured in the legal order of general citizens. Accordingly, the action filed by the appellee (the "Action") is a legal dispute as prescribed in Article 3, paragraph (1) of the Court Act.

(2) The Measures, etc. imply that the assembly's management board concluded that the appellee was negligent in performing the public service as a city assembly member and judged and determined him/her to be a person who is incapable of fulfilling his/her responsibilities unless a warning is issued, and thus, the Measures, etc. can be found to have diminished the social appraisal of the appellee as a city assembly member. In addition, the claim filed by the appellee will be subject to judicial review, and thus determination on such matters as whether or not the facts indicated in the Measures, etc. are true and whether or not there are adequate grounds to believe such facts as being true should be made by the court, and the court has made negative determinations for both such matters. Accordingly, the appellant is liable to offer state redress due to defamation.

4. However, while the determination of the court of prior instance as described in 3(1) above can be upheld in its conclusion, its determination described in 3(2) above cannot be upheld for the following reasons.

(1) In this case, the appellee claimed damages pursuant to Article 1, paragraph (1) of the State Redress Act against the appellant alleging that the appellee has suffered defamation and moral damage due to the assembly's management board's act of taking the Measure and the city assembly chairperson's act of publicizing such Measure (the Measures, etc.). This is a claim for state redress based on infringement of rights and interests protected by private law and cannot be said to be unsuitable for conclusive settlement by the application of laws and regulations. Therefore, this Action should be found to be the legal dispute as prescribed in Article 3, paragraph (1) of the Court Act and thus, lawful.

(2) Yet, the appellee's claim is based on an assumption that the Measures, etc. taken on grounds of the appellee's absence from the Inspection Tour without justifiable grounds is illegal for the purpose of Article 1, paragraph (1) of the State Redress Act.

An assembly of an ordinary local government has autonomous legal norms based on the spirit of local autonomy and it is appropriate to leave punishment and other measures to be taken against the member of the assembly to the autonomous determination of the assembly as long as such punishment and measures are merely a matter of internal discipline of the assembly (judgment of the Grand Bench of the Supreme Court of October 19, 1960, 1959 (O) 10, Minshu Vol. 14, No. 12, at 2633). This should be no different in the case of determining whether or not it is appropriate to file the claim seeking state redress on the grounds that the abovementioned measures infringe the rights and interests protected by private law.

Accordingly, it is reasonable to consider that, in determining whether or not it is appropriate to file a claim seeking state redress on the grounds that the punishment and other measures taken against a member of the assembly of an ordinary local government infringe the member's rights and interests protected by private law, as long as the measures are merely a matter of internal discipline of the assembly, the autonomous determination of the assembly should be respected and the propriety of the claim should be determined based on such determination.

(3) Examining this case from such standpoint, the Measure was taken by the assembly's management board as the other necessary measures as prescribed in Article 3 of the Guidelines on the grounds that the appellee's absence from the Inspection Tour without reasonable grounds constitutes violation of Article 2, item (ii) of the Guidelines, which stipulates that city assembly members are required to fulfill their responsibilities as such, in accordance with the spirit of local autonomy and the Rules. The Measure has been taken by the city assembly against the act conducted by the appellee as a city assembly member based on the Guidelines, and it has no particular legal force. In addition, the city assembly chairperson's acts of reading aloud the Written Notice and delivering it to the appellee in the chairperson’s office in the presence of a considerable number of newspaper reporters cannot be considered as publicizing the Measure in a manner or method that particularly diminishes the appellee's social appraisal.

For the reasons described above, the Measure is only a matter of internal discipline of the assembly and thus the assembly’s autonomous determination should be respected in determining whether or not the Measure was appropriate and the Measures, etc. cannot be said to be an illegal exercise of public authority.

Accordingly, the Measures, etc. cannot be said to be illegal for the purpose of Article 1, paragraph (1) of the State Redress Act and the appellant is not liable to offer state redress to the appellee.

5. The determination of the court of prior instance to affirm the appellant's liability of state redress based on views different from those described above contains violation of laws and regulations that obviously affects the judgment. The counsels' arguments claiming in this regard are well-grounded, and of the judgment in prior instance, the part against the appellant of final appeal should inevitably be quashed. In addition, based on the explanations made above, the appellee's claim lacks legal basis and the judgment in the first instance finding to the same effect can be accepted in its conclusion and thus the appeal to the court of second instance filed by the appellee of final appeal should be dismissed.

Accordingly, the Court unanimously decides as set forth in the main text of the judgment.

Justice IKEGAMI Masayuki

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki

Justice YAMAGUCHI Atsushi

Justice MIYAMA Takuya