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1987 (O) 667

1990.07.20
1987 (O) 667
Minshu Vol. 44, No. 5
Judgment concerning the case regarding an acquittal having become final and binding through a retrial and unlawfulness of a judicial decision
Case of state redress and petition for an order of restoration to the original state from the state after provisional execution
Judgment of the Second Petty Bench, dismissed
Sendai High Court, Judgment of November 28, 1986
1. Even where an acquittal became final and binding through a retrial, special circumstances where a judge can be found to have exercised the authority granted thereto in clear breach of the purpose of said authority, such as where the judge made a judicial decision for an unlawful or unjust purpose, are required for the purpose of finding the State's responsibility to compensate for damage on the grounds that a judicial decision made by a judge involved an unlawful act as referred to in the provisions of Article 1, paragraph (1) of the State Redress Act.

2. Even where an acquittal became final and binding through a retrial, if it was suspected that the relevant person was found to be guilty through a reasonable determination process in comprehensive consideration of various sources of evidence at the time of the institution and conduct of prosecution, the public prosecutor's institution and conduct of prosecution does not constitute an unlawful act as referred to in the provisions of Article 1, paragraph (1) of the State Redress Act.
Article 1, paragraph (1) of the State Redress 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.
The final appeal is dismissed.

The costs of the final appeal shall be borne by the appellants of final appeal.
Reasons II-1, II-2, and III for a final appeal stated by the counsels for final appeal

According to the judicial precedents of the Court (the judgment of the Second Petty Bench of the Supreme Court, March 12, 1982, 1978 (O) No. 69, Minshu, Vol. 36, No. 3, at 329; the judgment of the First Petty Bench of the Supreme Court, March 18, 1982, 1980 (O) No. 792, Saibanshu Minji, No. 135, at 405), even if a judicial decision on a legal dispute which was made by a judge contains a defect that should be rectified by an appeal or any other relief method under procedural law, this does not naturally give rise to the issue of the State's responsibility to compensate for damage on the grounds that there was an unlawful act as referred to in the provisions of Article 1, paragraph (1) of the State Redress Act, and the aforementioned responsibility is affirmed only if there are special circumstances where the judge can be found to have exercised the authority granted thereto in clear breach of the purpose of said authority, for example, where said judge made a judicial decision for an unlawful or unjust purpose. It is reasonable to consider that this theory does not change even where, in a criminal case, a conviction that became final and binding in final appellate instance is rescinded in a retrial and an acquittal becomes final and binding.

When this determination is applied to this case, based on the facts lawfully determined by the court of prior instance, it cannot be found that there was an unlawful act as referred to in the provisions of Article 1, paragraph (1) of the State Redress Act in that the criminal court of second instance rendered a judgment of conviction against Appellant A with regard to the charged fact of homicide and the court of final appellate instance on the same case upheld the judgment. Therefore, the determination of the court of prior instance that denied the appellee's responsibility under Article 1, paragraph (1) of the same Act is legitimate and can be accepted. The counsels also argue unconstitutionality, but the counsels' arguments are substantially arguments of a mere violation of laws and regulations, and the judgement in prior instance does not contain the aforementioned unlawfulness as indicated above. In addition, the judicial precedents cited in the counsels' arguments do not adopt interpretations that differ from the aforementioned determination. The arguments are only denouncing the judgment in prior instance based on the counsels' own opinions, and thus are not acceptable.

Reasons II-3 to II-5 and III for a final appeal stated by the same counsels for final appeal

According to the judicial precedent of the Court (the judgment of the Second Petty Bench of the Supreme Court, October 20, 1978, 1974 (O) No. 419, Minshu, Vol. 32, No. 7, at 1367), in a criminal case, the public prosecutor's institution and conduct of prosecution does not immediately constitute an unlawful act as referred to in Article 1, paragraph (1) of the State Redress Act just because an acquittal became final and binding, and what the public prosecutor is convinced of at the time of instituting and conducting prosecution and what the judge is convinced of at the time of rendering a judgment differ in nature, and it is sufficient if it is suspected that the relevant person was found to be guilty through a reasonable determination process in comprehensive consideration of various sources of evidence at the time of the aforementioned institution and conduct of prosecution. It is reasonable to consider that this theory does not change even where a conviction that became final and binding in final appellate instance is rescinded in a retrial and an acquittal becomes final and binding.

When this determination is applied to this case, based on the facts lawfully determined by the court of prior instance, it cannot be found that there was an unlawful act as referred to in the provisions of Article 1, paragraph (1) of the State Redress Act in that the public prosecutor instituted and conducted the prosecution in question on the grounds that Appellant A is suspected of being guilty with regard to the charged fact of homicide. Therefore, the judgment in prior instance that denied the appellee's responsibility under Article 1, paragraph (1) of the same Act can be accepted though it is not necessarily appropriate in terms of its explanation. The counsels' arguments are not acceptable.

Other reasons for final appeal

The findings and determination of the court of prior instance regarding the counsels' arguments are legitimate and can be accepted in light of the evidence indicated in the judgment in prior instance, and the process thereof contains no illegality as argued by the counsels. The arguments are only criticizing the selection of evidence and findings of facts made by the court of prior instance under its exclusive power, and thus are not acceptable.

Accordingly, in accordance with Articles 401, 95, 89, and 93 of the Code of Civil Procedure, the Court unanimously decides as set forth in the main text.
Justice KAGAWA Yasukazu

Justice FUJISHIMA Akira

Justice OKUNO Hisayuki

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