1990.02.01

1988 (Gyo-Tsu) 163

Minshu Vol. 44, No. 2

Judgment concerning whether Article 4, paragraph (2) of the Regulation for Registration of Firearms and Swords comply with the Act for Controlling the Possession, etc. of Firearms and Swords

Case seeking revocation of the disposition to refuse registration of swords

Judgment of the First Petty Bench, dismissed

Tokyo High Court, Judgment of August 17, 1988

Article 4, paragraph (2) of the Regulation for Registration of Firearms and Swords, which provides, as the appraisal standards for swords eligible to be registered under Article 14, paragraph (1) of the Act for Controlling the Possession, etc. of Firearms and Swords, that an appraisal is to be made only with regard to Japanese swords that have cultural property value as works of art, does not go beyond the bounds of the purpose of delegation under Article 14, paragraph (5) of the same Act.

Article 14 of the Act for Controlling the Possession, etc. of Firearms and Swords, and Article 4, paragraph (2) of the Regulation for Registration of Firearms and Swords



Act for Controlling the Possession, etc. of Firearms and Swords

Article 14

(1) The Commissioner for Cultural Affairs is to register matchlock muskets and other traditional firearms which have value as works of art or antiques, or swords which have value as works of art.

(2) Owners of firearms or swords (or persons who actually possess them if owners are unknown; hereinafter the same applies) who intend to obtain the registration referred to in the preceding paragraph must apply for registration pursuant to the procedures specified by Ministry of Education Order.

(3) The registration referred to in paragraph (1) must be made based on an appraisal by registration screening board members.

(4) If the Commissioner for Cultural Affairs makes the registration under the provisions of paragraph (1), the Commissioner must promptly notify the prefectural public safety commission having jurisdiction over the domicile of the owner of the registered firearm or sword of that fact.

(5) The Ministry of Education Order prescribes the method of making the registration referred to in paragraph (1), the appointment and duties of the registration screening board members referred to in paragraph (3), the standards and procedures for the appraisal referred to in paragraph (3), and other details necessary for the registration.



Regulation for Registration of Firearms or Swords

Article 4, paragraph (2)

(2) An appraisal of a sword is to be made based on whether or not the sword is a Japanese sword which falls under any of the following items:

(i) a sword which has beauty in its appearance, tempering, Hamon patterns and other elements, or a sword which clearly demonstrates the traditional characteristics of the relevant school of Japanese swordsmanship;

(ii) a sword accompanied by an inscription that is valuable as literature;

(iii) a sword which has a history or origin that is valuable as a historical source; or

(iv) any other sword equivalent to those set forth in the preceding items, which has an accouterment that is valuable as craftwork.

The final appeal is dismissed.

The costs of the final appeal shall be borne by the appellant of final appeal.

Concerning the reasons for a final appeal stated by the counsels for final appeal, SAKAMOTO Seiichi, KOBAYASHI Minoru, and SHIMIZU Kyoko

Swords that are registered under Article 14, paragraph (1) of the Act for Controlling the Possession, etc. of Firearms and Swords (hereinafter referred to as the "Act") are excluded pursuant to Article 3, paragraph (1), item (vi) of the Act from the scope of swords prohibited from possession under the main clause of the same Article. This may be because some swords have cultural property value as works of art and it is beneficial from the perspective of protection of cultural properties to permit possession of these swords by opening up the way for their registration, thereby promoting their preservation and utilization as cultural properties, and also because permitting possession of only such swords that have cultural property value as works of art would not be seriously detrimental to the prevention of harm. This interpretation is clear from the following points: for the perspective of prevention of harm, it is provided that the permission for possession of swords under Article 4 of the Act can be obtained only when the possessor does not fall under any of the items of Article 5, paragraph (1) of the Act, whereas there is no such limitation to the person who is to obtain the registration under Article 14, paragraph (1) of the Act; a sword may be registered if it is in itself found to fall within the scope of "swords which have value as works of art" prescribed in Article 14, paragraph (1) of the Act, and any person may possess it by obtaining such registration; and the registration affairs are under the jurisdiction of the Commissioner for Cultural Affairs (see 1984 (Gyo-Tsu) No. 17, the judgment of the Second Petty Bench of the Supreme Court of November 20, 1987, Saibanshu Minji No. 152, at 209).

With regard to the procedures for registration of swords, Article 14, paragraph (3) of the Act provides that the "registration referred to in paragraph (1) must be made based on an appraisal by registration screening board members," and paragraph (5) of the same Article provides that the "Ministry of Education Order prescribes the method of making the registration referred to in paragraph (1), the appointment and duties of the registration screening board members referred to in paragraph (3), the standards and procedures for the appraisal referred to in paragraph (3), and other details necessary for the registration." Based on these provisions, the Regulation for Registration of Firearms and Swords (Regulation of the Commission for Protection of Cultural Properties No. 1 of 1958; this Regulation is deemed effective as the Ministry of Education Order pursuant to paragraph (5) of the Supplementary Provisions of Act No. 99 of 1968; hereinafter referred to as the "Regulation") was established. The purpose of the establishment of the Regulation should be understood as requiring the registration to be made based on an appraisal by registration screening board members who have expert knowledge and experience because an expert study is necessary when defining the scope of swords that are appropriate to be registered as those having cultural property value in Japan, and at the same time, delegating the Regulation to set the appraisal standards based on the idea that setting such standards is in itself within the domain of expertise. Consequently, it is reasonable to consider that the competent administrative authority is granted a certain scope of discretion from an expert perspective to define the standards for such appraisal under the Regulation, as long as such discretion does not go beyond the bounds of the purpose of delegation by the Act (see the aforementioned Supreme Court judgment).

Looking at the standards for an appraisal of swords as prescribed in the Regulation, Article 4, paragraph (2) of the Regulation provides that an "appraisal of a sword is to be made based on whether or not the sword is a Japanese sword which falls under any of the following items," followed by item (i) that sets forth a "sword which has beauty in its appearance, tempering, Hamon patterns and other elements, or a sword which clearly demonstrates the traditional characteristics of the relevant school of Japanese swordsmanship," item (ii) that sets forth a "sword accompanied by an inscription that is valuable as literature," item (iii) that sets forth a "sword which has a history or origin that is valuable as a historical source," and item (iv) that sets forth "any other sword equivalent to those set forth in the preceding items, which has an accouterment that is valuable as craftwork." As these provisions show, although Article 14, paragraph (1) of the Act literally does not exclude foreign swords, it is clear that the appraisal standards described above require that an appraisal be made only with regard to Japanese swords which have cultural property value as works of art.

The next question is whether this requirement goes beyond the bounds of the purpose of delegation by the Act. In light of the aforementioned purpose of the Act which pays attention to the cultural property value of swords and opens up the way for their registration, even in the process of deciding what kind of swords are valuable as works of art and eligible for registration, consideration must be given to the cultural property value that the swords in question have in Japan. In this respect, the court of prior instance lawfully determined the following facts. (1) After Japan accepted the Potsdam Declaration, the Occupation Forces of the Allied Powers (hereinafter referred to as the "Occupation Forces") issued General Order No. 1 dated September 2, 1945, and as part of disarmament of civilians, ordered under Clause XI that the Japanese government shall be prepared to collect all arms in the possession of the Japanese Civilian population and deliver them to the Occupational Forces. In response, the Japanese government showed strong resistance to this measure by which even Japanese traditional swords, which were the objects of appreciation by sword lovers, would be recognized as equal to ordinary weapons and subject to seizure, and as a result of negotiations with the Occupation Forces to gain their understanding, it was decided that swords having value as works of art would be excluded from the scope of objects to be delivered to the Occupation Forces. Under the Order for Prohibiting the Possession of Firearms, etc. (Imperial Order No. 300 of 1946), the possession of these swords was allowed on condition of the permission by the local governors (this is the origin of the current registration system discussed in this case). (2) After that, along with the enactment of the Act on Protection of Cultural Properties, the Order for Controlling the Possession of Firearms, Swords, etc. that was put into effect on November 20, 1950 (Cabinet Order No. 334 of 1950; hereinafter referred to as the "Former Control Order") adopted the registration system operated by the Commission for Protection of Cultural Properties, which is the predecessor of the current registration system, and the Order for Prohibiting the Possession of Firearms, etc. was repealed accordingly. The purpose of this system revision was to promote the preservation and utilization of art swords, which had conventionally been categorized as a kind of weapon and had been subject to permission for possession from the perspective of control of public order, by regarding these swords as being equivalent to cultural properties. (3) The current Act came into effect as of April 1, 1958 (it was formerly called "Act for Controlling the Possession of Firearms, Swords, etc." and was renamed by Act No. 47 of 1965), and the Former Control Order was repealed. However, there is no literal difference between the provisions on registration in the Act and those in the Former Control Order (it should be noted that through the subsequent legal amendment, the jurisdiction over registration affairs was vested in the Commissioner for Cultural Affairs). (4) After the Act came into effect, there has been no registration of foreign swords (before that, as indicated in the list attached to the judgment in first instance, there were some registrations of foreign swords, most of which were permissions for possession of foreign swords that had been granted based on the partly ambiguous permission criteria under the Order for Prohibiting the Possession of Firearms, etc. before the enforcement of the Former Control Order and then were converted to registrations under the Former Control Act upon its enforcement). (5) Japanese swords are made primarily of raw steel called "Tamahagane" (meaning "jewel steel") and produced through the processes of folding and tempering, applying clay, and quenching. Thus, they are swords made with the Japanese unique production method and have beautiful style. The production method gradually developed since the Nara Period, and in the Heian Period, swordsmiths started to carve their names on the sword blades and the characteristics of the styles of different schools of swordsmanship began to be embodied in the swords themselves. Japanese swords with such beautiful style have traditionally been appreciated as works of art in Japan. In light of these findings of fact, the Regulation provides, as the appraisal standards for swords with cultural property value, that an appraisal is to be made only with regard to Japanese swords that have cultural property value as works of art as explained above, while limiting the scope of subjects eligible to be registered as having such value in Japan only to those that comply with these standards, and this provision should be deemed to have set the appraisal standards that are reasonable in line with the purpose of Article 14, paragraph (1) of the Act. Therefore, the Regulation cannot be judged to be invalid due to going beyond the bounds of the purpose of delegation by the Act. In that case, the two sabers in question for which the appellant applied for registration are foreign swords that the appellant had bought in Spain and brought back to Japan, and they clearly do not fall within the scope of swords eligible to be registered in light of the appraisal standards under Article 4, paragraph (2) of the Regulation. In consequence, the determination of the court of prior instance which denied the illegality, based on the same reasons as above, with regard to the disposition in question made by the appellee to refuse the appellant's application for registration can be upheld as a justifiable determination, and the judgment in prior instance does not contain such illegality as argued by the counsels. The counsels' argument of unconstitutionality substantially alleges mere violation of laws and regulations, and as explained above, the judgment in prior instance is not in violation of any laws or regulations. Thus, their argument is not acceptable.

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

The dissenting opinion stated by Justice TSUNODA Reijiro and Justice OHORI Seiichi is as follows.

We cannot agree with the majority opinion that ruled that the final appeal should be dismissed by finding the judgment in prior instance, which denied the illegality with regard to the disposition made by the appellee to refuse the appellant's application for registration, to be justifiable. The reasons for our opinion are as follows.

I. The majority opinion considers that the term "swords" referred to in Article 14, paragraph (1) of the Act does not literally exclude foreign swords and also considers that the competent administrative authority is granted a certain scope of discretion from an expert perspective to define the appraisal standards under paragraph (5) of the same Article, as long as such discretion does not go beyond the bounds of the purpose of delegation by the Act. Then, the majority opinion considers that: based on the delegation under the same paragraph, Article 4, paragraph (2) of the Regulation provides that only Japanese swords having cultural property value as works of art are eligible to be registered, and this provision should be deemed to have set the appraisal standards that are reasonable in line with the purpose of Article 14, paragraph (1) of the Act; and therefore, Article 4, paragraph (2) of the Regulation cannot be judged to be invalid due to going beyond the bounds of the purpose of delegation by the Act. We have no objection to the majority opinion on the point that the term "swords" referred to in Article 14, paragraph (1) of the Act does not exclude foreign swords, but we cannot agree with it on the point that even if the Regulation provides that only Japanese swords having cultural property value as works of art are eligible to be registered, this does not go beyond the bounds of the purpose of delegation by the Act and therefore Article 4, paragraph (2) of the Regulation is not invalid. The reasons for our view are as follows.

(i) Literally, the term "swords" referred to in Article 14, paragraph (1) of the Act is interpreted as including foreign swords (see Article 2, paragraph (2) of the Act). It is reasonable to consider that the purpose of the registration system prescribed in Article 14, paragraph (1) of the Act is to promote the preservation and utilization of swords which have value as works of art and exist in Japan, by treating them as cultural properties in Japan, without distinguishing between Japanese swords and foreign swords. This means that the Act acknowledges that there may be foreign swords that have value as works of art, and hence, the Act requires that in the process of establishing the Regulation based on the delegation under paragraph (5) of the same Article, the matters set forth in the same paragraph should be prescribed both for Japanese swords and foreign swords. It is hard to imagine that the Act expects or allows the Regulation to exclude foreign swords from the scope of subjects eligible to be registered. To put it differently, in the first place, basic matters of the registration system such as the scope of subjects eligible to be registered must be prescribed by the Act, and it is unlikely that the Act may delegate the Regulation to decide anything that would result in modifying the basic matters of the registration system, such as limiting the scope of subjects eligible to be registered only to Japanese swords, without indicating any guidelines. In addition, a decision to limit the scope of subjects eligible to be registered only to Japanese swords and exclude foreign swords from this scope even if they have value as works of art should be regarded as a policy decision, and we consider that it is inappropriate to understand that the Act delegates the Regulation to make such a decision.

(ii) In the first place, setting the appraisal standards and defining the scope of subjects eligible to be registered are different concepts, and we consider that if one interprets that the concept of defining the scope of subjects eligible to be registered is necessarily contained in the concept of setting the appraisal standards, such interpretation is inconsistent with the normal interpretation of terms in legal texts. With regard to the structure of the legal text of Article 14 of the Act as well, it is most rational according to legal principles to understand that the scope of swords eligible to be registered is defined first, and then whether or not swords eligible to be registered have value as works of art is determined based on an appraisal by experts, and that the appraisal standards are to be prescribed by a regulation of the competent administrative authority. The same Article should be interpreted in line with this structure.

(iii) As the substantial reasons to allow the Regulation to limit the scope of subjects eligible to be registered only to Japanese swords, the majority opinion points out the history of the establishment of the registration system, the practice followed in operating the system, and the fact that Japanese swords have traditionally been appreciated as works of art. However, although these reasons may be rational reasons for limiting the scope of subjects eligible to be registered only to Japanese swords, they cannot be rational and positive reasons for excluding foreign swords from this scope.

Consequently, Article 4, paragraph (2) of the Regulation which limits the scope of swords eligible to be registered only to Japanese swords under Article 14, paragraph (1) of the Act should be judged to be an illegal and invalid order that goes beyond the bounds of delegation under Article 14, paragraph (5) of the Act, and hence, the disposition made by the appellee to refuse the appellant's application for registration on the grounds that the sabers in question do not fall within the scope of Japanese swords prescribed in Article 4, paragraph (2) of the Regulation is illegal and should inevitably be revoked.

II. The determination of the court of prior instance, which ruled that disposition to be legal based on the view that is contrary to what we have stated above, is illegal due to an erroneous interpretation and application of Article 14 of the Act, and such illegality obviously affects the judgment. Therefore, the counsels' arguments are well-grounded, and the judgment in prior instance should inevitably be quashed. For the reasons described above, the appellant's claim in this case has legal basis, and in conclusion, the judgment in first instance that dismissed the appellant's claim should be revoked and this claim should be upheld.

Justice OUCHI Tsuneo

Justice TSUNODA Reijiro

Justice YOTSUYA Iwao

Justice OHORI Seiichi

Justice SATO Tetsuro is ineligible to sign and seal due to retirement.

Justice OUCHI Tsuneo