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1990 (Gyo-Tsu) 91

1990.12.21
1990 (Gyo-Tsu) 91
Minshu Vol. 44, No. 9
Judgment concerning the enactment of a prefectural or municipal ordinance concerning reimbursement of expenses to assembly members, etc. and discretion of the assembly of an ordinary local public entity
Case seeking compensation for loss or damage
Judgment of the Second Petty Bench, dismissed
Tokyo High Court, Judgment of March 29, 1990
When an assembly of an ordinary local public entity enacts a prefectural or municipal ordinance concerning reimbursement of expenses to its members, etc. pursuant to Article 203, paragraph (5) of the Local Autonomy Act, the assembly is allowed to specify the grounds for payment in advance and pay a certain amount which is a standard actual cost if such grounds are applicable. In this case, the specification of the grounds for payment and the certain amount is left to the discretion and determination of the abovementioned assembly.
Article 203, paragraphs (3) and (5) and Article 242-2, paragraph (1), item (iv) of the Local Autonomy Act



Local Autonomy Act

Article 203, paragraphs (3) and (5)

(3) The person referred to in paragraph (1) may be reimbursed for necessary expenses incurred in performing his/her duties.

(5) The amount of reward, reimbursement of expenses and end-of-year allowance as well as the payment method thereof must be specified in a prefectural or municipal ordinance.



Article 242-2, paragraph (1), item (iv)

(1) In the case where a resident of an ordinary local public entity makes a request pursuant to the provisions of paragraph (1) of the preceding Article, when such resident is dissatisfied with the results of the audit or recommendation conducted by the audit committee member pursuant to the provisions of paragraph (3) of that Article or the measures taken by the assembly, head, other executive agency or official of the ordinary local public entity pursuant to the provisions of paragraph (7) of that Article, when the audit committee member fails to conduct the audit or recommendation pursuant to the provisions of paragraph (3) of that Article within the period prescribed in paragraph (4) of that Article, or when the assembly, head, other executive agency or official fails to take the measures under the provisions of paragraph (7) of that Article, the resident may make the following requests by filing an action with the court with respect to the illegal acts or the fact of negligence related to the request under paragraph (1) of that Article; provided, however, that the request under item (i) may only be filed in the case where the relevant act is likely to cause damage to the ordinary local public entity that is difficult to recover and the request for return of unjust enrichment filed against the official among the requests prescribed in item (iv) may only be filed to the extent a benefit exists for the official.

(iv) claim for compensation for loss or damage, request for return of unjust enrichment against the official in subrogation of the ordinary local public entity, claim for a declaratory judgment of absence of legal relationships, claim for compensation for loss or damage, request for return of unjust enrichment, claim for recovery or claim for elimination of obstruction against the other party related to the relevant act or the fact of negligence.
The final appeal is dismissed.

The costs of the final appeal shall be borne by the appellants of final appeal.
Reasons for a final appeal stated by the appellants

According to the records in question, the claims made by the appellants in the principal action are as follows: [1] On July 18, 1986, the appellee, who is the mayor of Ichikawa City, expended 771,000 yen in total (hereinafter referred to as the "Expenditures") as reimbursement of expenses to 37 assembly members who attended the regular plenary session and permanent committee of Ichikawa City assembly in June 1986, pursuant to Article 5-3 of the Ichikawa City Ordinance concerning Salary, Travel Expenses and Reimbursement of Expenses of Officials with Special Capacity (Ordinance of Ichikawa City No. 26 of 1956; hereinafter referred to as the "Municipal Ordinance"); [2] The reimbursement of expenses under Article 203, paragraph (3) of the Local Autonomy Act (hereinafter referred to as the "Act") should be limited to the non-taxable payment as prescribed in Article 9, paragraph (1), items (iv) to (vi) of the Income Tax Act, and other payments should be included in rewards; [3] Article 5-3 of the Municipal Ordinance provides that "when a member of the assembly attends a plenary session, permanent committee or special committee, 3,000 yen per day shall be paid as reimbursement of expenses." Among the 3,000 yen mentioned above, 2,500 yen corresponds to miscellaneous expenses such as a lunch fee, refreshment fee and writing utensils fee that do not fall under the category of non-taxable payments prescribed in Article 9, paragraph (1), items (iv) to (vi) of the Income Tax Act and should be included in rewards under ordinary circumstances, and thus the payment of the abovementioned portion is illegal; [4] The appellee's acts (i.e. [a] the act of submitting to the assembly a budget bill to include in the scope of reimbursement of expenses miscellaneous expenses including a lunch fee, refreshment fee and writing utensils fee that are not covered by reimbursement of expenses as prescribed in Article 203, paragraph (3) of the Act; [b] the act of submitting a draft of the Municipal Ordinance of the same content as those mentioned in [a] above to the assembly; [c] the act of failing to exercise the right to submit the resolution for reconsideration after the provision of Article 5-3 of the Municipal Ordinance was passed; and [d] the act of failing to exercise the authority to supervise the accounting under Article 149, item (v) of the Act before the Expenditures were made after the promulgation of Article 5-3 of the Municipal Ordinance); [5] Among the Expenditures, 642,500 yen is a portion corresponding to miscellaneous expenses including a lunch fee, refreshment fee and writing utensils fee and is illegal due to the fact that the acts described in [a] to [d] in [4] above are illegal; [6] The appellee's acts described in [a] to [d] in [4] above are based on negligence due to erroneous construction of Article 203, paragraph (3) of the Act and thus constitute tort, which caused damages in an amount equivalent to 642,500 yen to Ichikawa City; and [7] Due to the abovementioned circumstances, the appellants, who are residents of Ichikawa City, have claimed payment of 642,500 yen mentioned above and delay damages accrued thereon against the appellee, in subrogation of Ichikawa City, pursuant to Article 242-2, paragraph (1), item (iv) of the Act.

In the claims made in the principal action, the appellants alleged that the 642,500 yen included in the Expenditures is illegal since the acts described in [a] to [d] in [4] above are illegal. This allegation should be recognized to be based on an assumption that Article 5-3 of the Municipal Ordinance, which stipulates that the portion alleged by the appellants to be corresponding to miscellaneous expenses including a lunch fee, refreshment fee and writing utensils fee (specifically, the portion equivalent to 2,500 yen among the 3,000 yen per day paid as reimbursement of expenses) is to be paid as part of the reimbursement of expenses, is in violation of Article 203, paragraph (3) of the Act.

Therefore, the court will examine whether or not Article 5-3 of the Municipal Ordinance is in violation of Article 203, paragraph (3) of the Act.

Article 203 of the Act stipulates that the members, etc. of an assembly of an ordinary local public entity may be reimbursed for necessary expenses incurred in performing their duties (paragraph (3) of that Article) and that the amount of reimbursement of expenses and the payment method thereof must be specified in a prefectural or municipal ordinance (paragraph (5) of that Article). With respect to the reimbursement of expenses mentioned above, it should be interpreted that the grounds for payment to make reimbursement of expenses can be specified in advance and when they are applicable, it should be allowed to pay a certain amount, which is a standard actual cost, regardless of the actual amount used. In this case, it is appropriate to interpret that the decision to specify the grounds for payment to make reimbursement of expenses and a certain amount, which is a standard actual cost, is left to the discretion and determination of the assembly of the ordinary local public entity which stipulates a prefectural or municipal Ordinance on reimbursement of expenses.

Article 5-3 of the Municipal Ordinance provides that, when a member of an assembly attends a plenary session, permanent committee or special committee, 3,000 yen per day will be paid as reimbursement of expenses. There are no circumstances that are sufficient enough to find that the grounds for payment to make the reimbursement of expenses described above as well as the amount paid go beyond the bounds of the discretionary power granted to the Ichikawa City assembly pursuant to Article 203 of the Act or constitute an abuse of such power, and it is thus appropriate to interpret that the abovementioned grounds and amount are within the scope of the discretionary power mentioned above.

Accordingly, Article 5-3 of the Municipal Ordinance is not in violation of Article 203 of the Act, and the claims made by the appellants in the principal action lack a premise without the need to determine the remaining points.

For the reasons described above, the judgment in prior instance which held that the claims made by the appellants in the principal action lack legal basis and should thus be dismissed is justifiable in its conclusion. The arguments are not acceptable.

Accordingly, in accordance with Article 7 of the Administrative Case Litigation Act and Articles 401, 95, 89 and 93 of the Code of Civil Procedure, except for the dissenting opinion stated by justice KAGAWA Yasukazu, the Court unanimously decides as set forth in the main text.

The dissenting opinion stated by justice KAGAWA Yasukazu is as follows.

The appellee is a mayor of Ichikawa City and the action in question has been filed by the appellants, who are residents of Ichikawa City, alleging that the appellee's act of making the Expenditures is illegal and claiming compensation for loss or damage against the appellee in subrogation of the City pursuant to the provisions of Article 242-2 of the Act. Such action should be dismissed without prejudice for being unlawful.

Specifically, the head of an ordinary local public entity should be included in the scope of "officials who have authority to conduct the following acts" as prescribed in the second sentence of the main clause of Article 243-2, paragraph (1) of the Act and it should be interpreted that residents are not allowed to file an action in subrogation of an ordinary local public entity under Article 242-2 of the Act with respect to the claim for compensation for loss or damage sustained by the ordinary local public entity due to the acts of the official as prescribed in that paragraph. The reasons for such interpretation are as stated in my dissenting opinion in the judgment of the Second Petty Bench of the Supreme Court of October 30, 1987, 1987 (Gyo-Tsu) 40, Saibanshu Minji No. 152 at 121.

If the action in question is found to be lawful, I agree with the majority opinions with respect to the issues on the merits.
Justice KIZAKI Ryohei

Justice FUJISHIMA Akira

Justice KAGAWA Yasukazu

Justice NAKAJIMA Toshijiro
(This translation is provisional and subject to revision.)