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1990 (O) 27

1990.10.18
1990 (O) 27
Minshu Vol. 44, No. 7
Judgment concerning the case regarding death of a public housing resident and succession by his/her heir of the right to use the public housing
Case of vacation of a building
Judgment of the First Petty Bench, dismissed
Tokyo High Court, Judgment of September 18, 1989
Where a public housing resident dies, his/her heir does not naturally succeed the right to use the public housing.
Articles 17 and 18 of the Act on Public Housing and Article 896 of the Civil Code

Act on Public Housing
Article 17 A public housing resident must be a person who fulfills at least the conditions referred to in the following items (items (ii) and (iii) for the elderly, physically disabled, and other persons specified by Cabinet Order as specially requiring stabilization of residence):
(i) having a relative who actually cohabits or intends to cohabit with him/her (including a person who has not submitted a notification of marriage but is de facto in the same circumstance as the marital relationship with him/her and any other person who has promised to marry him/her);
(ii) being a person who has income at the level specified by Cabinet Order; provided, however, that, for public housing constructed with a government subsidy pursuant to the provisions of Article 8, paragraph (1) or (3), being a person who lost housing due to the relevant disaster for three years from the day on which the disaster occurred; and
(iii) being a person who is clearly in need of housing at present.

Article 18
Where the number of persons who applied for residence exceeds the number of available houses of the relevant public housing, the head of the relevant business entity must decide persons to be residents of the public housing by investigating the actual conditions of the applicants' need of housing and by making selections therefrom by a fair method pursuant to the provisions of a Prefectural or Municipal Ordinance in accordance with the selection standard specified by Cabinet Order.

Civil Code
Article 896 From the time of commencement of inheritance, an heir shall succeed blanket rights and duties attached to the property of the decedent; provided that this shall not apply to rights or duties of the decedent that are purely personal.
The final appeal is dismissed.
The costs of the final appeal shall be borne by the appellants of final appeal.
Reason I for a final appeal stated by the counsel for final appeal, OTANI Masahiko

The purpose of the Act on Public Housing is to lease housing to low-income earners who are in need of housing at a cheap rent, thereby contributing to stability of the lives of the citizenry and improvement of social welfare (Article 1). For that purpose, said Act limits residents of public housing to those who fulfill certain conditions (Article 17) and provides that residents must be decided through selection by a fair method pursuant to the provisions of a Prefectural or Municipal Ordinance in accordance with the selection standard specified by Cabinet Order (Article 18). Furthermore, said Act provides that where a resident's income exceeds the level specified by Cabinet Order, the resident must endeavor to vacate the public housing depending on the number of years of his/her residence (Article 21-2, paragraph (1)) and that the head of the relevant business entity may demand vacation of the public housing (Article 21-3, paragraph (1)).

In consideration of the aforementioned purpose of the provisions of the Act on Public Housing, there is no room to consider that where a resident dies, his/her heir naturally succeeds the right to use the public housing. The determination of the court of prior instance to the same effect is legitimate and can be accepted. The judicial precedents cited in the counsel's arguments do not adopt a different interpretation from the aforementioned determination, and the judgment in prior instance contains no illegality as argued by the counsel. The arguments are only denouncing the judgment in prior instance based on the counsel's own opinions, and thus are not acceptable.

Reason II for a final appeal stated by the same counsel for final appeal

The findings and determination of the court of prior instance regarding the counsel's 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 counsel. The arguments are, in the end, 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 TSUNODA Reijiro

Justice OUCHI Tsuneo

Justice YOTSUYA Iwao

Justice OHORI Seiichi

Justice HASHIMOTO Shirohei
(This translation is provisional and subject to revision.)