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1987 (Gyo-Tsu) 22

1990.04.12
1987 (Gyo-Tsu) 22
Minshu Vol. 44, No. 3
Judgment concerning the case in which the Court held that the act of the officials of city officials including the director of the construction bureau of the city, who were involved in the construction of a city road on land owned by the city in a protection forest, does not constitute an act of administration of property against which a resident's suit may be filed
Case seeking compensation for loss or damage (residents' suit)
Judgment of the First Petty Bench, quashed and decided by the Supreme Court
Osaka High Court, Judgment of November 28, 1986
When city officials including the director of the construction bureau of the city were involved in the process of constructing a city road on land owned by the city in a protection forest by affixing stamps of approval on the written decision on implementation of construction work allowing a contractor to conduct road construction work on that land, such act of the officials is an act performed (a decision made) by the persons in charge of road administration from the standpoint of road construction administration, i.e., aiming to ensure smooth implementation and achievement of a road development plan, and this act does not constitute an act of administration of property against which a resident's suit may be filed.
Article 242-2, paragraph (1) of the Local Autonomy Act



Local Autonomy Act

Article 242-2, paragraph (1)

(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 any of the following claims by filing an action with the court with respect to the illegal act or the fact of negligence related to the claim under paragraph (1) of that Article; provided, however, that the claim under item (i) may only be made in the case where the relevant act is likely to cause damage to the ordinary local public entity that is difficult to recover from and the claim for return of unjust enrichment against the official among the claims prescribed in item (iv) may only be made to the extent a benefit exists for the official:

(i) a claim against the relevant executive agency or official for an injunction to cease the relevant act in whole or in part;

(ii) a claim for the revocation of, or a declaration of nullity of, the relevant act that was conducted as an administrative disposition;

(iii) a claim against the relevant executive agency or official for a declaration of illegality of the relevant fact of negligence; and

(iv) a claim for compensation for loss or damage or claim for return of unjust enrichment to be made against the official on behalf of the ordinary local public entity, or a claim for a declaratory judgment of absence of legal relationships, claim for compensation for loss or damage, claim for return of unjust enrichment, claim for recovery or claim for elimination of obstruction to be made against the other party related to the relevant act or fact of negligence.
The judgment in prior instance is quashed, and the judgment in first instance is revoked.

The action filed by the appellees of final appeal is dismissed without prejudice.

The total court costs shall be borne by the appellees.
I. According to the records of the case, the appellees, who are residents of Kyoto City, filed this action, alleging that Appellant A1, who was in the post of the Director of the Construction Bureau of Kyoto City, and Appellant A2, who was in the post of the Chief of the Construction Planning Office of the Construction Bureau of Kyoto City, in conspiracy, had a contractor, D Construction Company (hereinafter referred to as "D Construction"), conduct road construction work on land owned by the city which was designated as a protection forest, and thus administered the city's property illegally in violation of Article 34, paragraph (2) of the Forest Act, and thereby caused the city to sustain damage in an amount of 709,400 yen equivalent to the expense for planting about 1,000 seedlings of Japanese cedar, which was implemented as a measure to restore the land to its original condition. Based on this allegation, the appellees claimed compensation for that amount of damage against the appellants on behalf of the city, in accordance with the provisions of Article 242-2, paragraph (1), item (iv) of the Local Autonomy Act (hereinafter referred to as the "Act").

The Court examines, by its own authority, whether or not the action filed by the appellees is lawful.

A residents' suit provided in Article 242-2 of the Act is intended to be filed for the purpose of ensuring proper management of local financial administration, and the matters subject to such suit are limited to the matters specified in Article 242, paragraph (1) of the Act, namely, disbursement of public funds, acquisition, administration and disposition of property, conclusion and performance of contracts, assumption of liabilities and other obligations, negligence in imposing or collecting public dues, and negligence in administering property, and all of these matters have a nature of an act or a fact relating to finance and accounting.

Accordingly, the action filed by the appellees can be regarded as a lawful action only if the act performed by the appellants constitutes an act of administering property which is in the scope of acts relating to finance and accounting. The Court examines this point.

II. The outline of the facts determined by the court of prior instance and the facts found in the case records is as follows.

1. In 1980, Kyoto City published a basic plan for the development of the northern area of Kyoto City ([a] District), and decided to construct a wide-area park for the recreation of city residents in [c] District, [b] Ward, Kyoto City, and to construct a city road that was to run from [d] Town in [b] Ward through to [e] Town in the same ward via the park. On May 23, 1981, the deputy mayor who served as an acting mayor of Kyoto City, after obtaining resolution of the Kyoto City Assembly, approved the route of that city road of 11,845 meters in length and 8.2 meters in width (or 45.5 meters at some points) under the name of "Kodeishi-Ofuse Route" and decided the area for the road.

2. The Construction Bureau of Kyoto City planned to have a contractor conduct construction work to make the land lot of a protection forest of 692 square meters located at [f]-[g], [d] Town, [b] Ward, Kyoto City, and two other land lots, which were owned by the city and formed a part of the planned site for the city road decided as the area for the abovementioned road (hereinafter referred to as the "Land"), into the shape of a road for 496 meters, and around July 22, 1981, Appellant A1 and Appellant A2 affixed stamps on the written decision on implementation of construction work, the former in the section for the Director of the Bureau and the latter in the section for the technical chief, and thereby approved the plan. At the request of Appellant A2 dated August 1, 1981, the Financial Bureau of the city conducted the administrative procedures including the bidding for a contract for the abovementioned construction work. After a stamp of approval was obtained from the Director of the Financial Bureau on the written decision on the contract for construction work under which D Construction was designated as the contractor, the price of contract was set at 198 million yen, and the period of construction was set until March 31, 1982; the contract for construction work in line with the content of this written decision (hereinafter referred to as the "Contract") was concluded with D Construction on August 27, 1981, in the name of the deputy mayor as the acting mayor of Kyoto City. D Construction set out to prepare for the construction work immediately on the day following the conclusion of the Contract, and after taking about two weeks to plan the operation process, prepare a work schedule, secure workers and tools, and make other preparations, the company pruned miscellaneous trees on the site on September 11, 1981. Around September 15, it commenced construction work on the Land, including cutting trees and weeds, removing plant roots, and cutting earth by using construction machines. During this period, around September 12, D Construction submitted a notification of commencement of construction work with the date column left blank and other related documents to the Northern Development Division of the Construction Planning Office of the Construction Bureau of Kyoto City. On this occasion, the division chief notified D Construction orally via the deputy division chief that the company was allowed to commence and proceed with the construction work based on the Contract.

3. The Land had been designated as a protection forest for headwater conservation by the Minister of Agriculture, Forestry and Fisheries, and this designation had not yet been cancelled by the time of the construction work based on the Contract. Specifically, the Construction Bureau of Kyoto City held preparatory negotiations with Kyoto Prefecture and the Ministry of Agriculture, Forestry and Fisheries (Forestry Agency) on the cancellation of the protection forest designation regarding the Land, and around April 10, 1981, the Minister of Agriculture, Forestry and Fisheries issued an answer to the governor of Kyoto Prefecture to the effect that the minister had no objection to including a protection forest in the areas subject to the development project for the northern area of Kyoto City and that the procedure for cancellation of protection forest designation under the Forest Act should be conducted in advance. On June 1, 1981, the mayor of Kyoto City submitted a written application to the governor of Kyoto Prefecture for the cancellation of the protection forest designation regarding the Land and other land concerned. After that, the city mayor obtained permission from the head of the Kyoto Forest Office of Kyoto Prefecture under Article 34, paragraph (1) of the Forest Act on July 23, 1981, for felling standing trees on the land including the Land for road construction, completed the felling in August 1981, and obtained permission under paragraph (2) of the same Article on September 2, 1981, to change the form of the land included in the area to be affected by the construction work which was adjacent to the Land. However, at the time when the construction work was commenced based on the Contract, the public notice of the cancellation of the protection forest designation was not yet issued, and it was on September 30, 1981, that the mayor of Kyoto City was notified by the governor of Kyoto Prefecture of the fact that the governor had received a notice from the Minister of Agriculture, Forestry and Fisheries that the abovementioned designation was scheduled to be cancelled, and finally, the public notice of this schedule was issued on October 2, 1981. In early October, a campaign demanding the suspension of the construction work broke out and one of the appellees took action casting doubt on the legality of the construction work. Due to such circumstances, the appellants discussed this matter and had the chief of the Northern Development Division order temporary suspension of the construction work. Afterwards, on February 23, 1982, the mayor of Kyoto City withdrew the application for the cancellation of the abovementioned protection forest designation, and during the period from the end of that month until early March, about 1,000 seedlings of Japanese cedar were planted as a measure to restore the Land to its original condition after the modification resulting from the construction work based on the Contract, and 709,400 yen was disbursed as the expense for this measure.

III. Given the facts as found above, the Court examines the nature of the act of the appellants. With regard to the land including the Land that formed a part of the planned site for the city road for which the route had been approved and the area had been decided, the appellants affixed stamps of approval on the written decision on the contract for construction work allowing a contractor to conduct road construction work to make the Land into the shape of a road, and then, based on the Contract concluded between the acting mayor of Kyoto City and D Construction, the appellants had D Construction conduct road construction work on the Land. Such act of the appellants is an act performed (a decision made) by the persons in charge of road administration from the standpoint of road construction administration, i.e., aiming to ensure smooth implementation and achievement of a road development plan by making the planned site for the city road into the shape of a road, and it is reasonable to consider that this act does not constitute an act of administration of property relating to finance and accounting which is directly intended to deal with property for financial purposes while, at the same time, focusing on the property value of the forest on the Land (protection forest) and aiming to maintain and conserve that value.

From this viewpoint, the act of the appellants cannot be regarded as an act against which a resident's suit may be filed as prescribed in Article 242-2 of the Act, and hence this action filed by the appellees should be held to be unlawful. Contrary to this, the court of prior instance and the court of first instance upheld the appellees' claim on the premise that this action is lawful. This determination by the lower courts resulted from the erroneous interpretation and application of laws and regulations, and such illegality apparently affects the judgment. In conclusion, the judgment in prior instance should be quashed, the judgment in first instance should be revoked, and the action should be dismissed without prejudice.

Accordingly, in accordance with Article 7 of the Administrative Case Litigation Act and Articles 408, 396, 386, 96, 89 and 93 of the Code of Civil Procedure, the Court unanimously decides as set forth in the main text of the judgment.
Justice YOTSUYA Iwao

Justice TSUNODA Reijiro

Justice OUCHI Tsuneo

Justice OHORI Seiichi
(This translation is provisional and subject to revision.)