2019.07.22

2018 (Gyo-Hi) 195

Minshu Vol. 73, No. 3

Judgment concerning the case regarding the propriety of a non-statutory action for judicial review of administrative disposition to seek declaration of non-existence of public obligation, which serves as a premise of an adverse disposition in the future, for the purpose of preventing the adverse disposition in the case where a requirement for filing an action for an injunctive order: "there is the probability that an administrative agency will make a certain original administrative disposition," is not fulfilled

Case seeking declaration of non-existence of the obligation to obey an order

Judgment of the First Petty Bench, quashed and remanded

Tokyo High Court, Judgment of January 31, 2018

A non-statutory action for judicial review of administrative disposition to seek declaration of non-existence of public obligation, which serves as a premise of an adverse disposition in the future, for the purpose of preventing the adverse disposition is unlawful in the cases where a requirement for filing an action for an injunctive order: "there is the probability that an administrative agency will make a certain original administrative disposition," is not fulfilled.

Article 3, paragraphs (1) and (7) of the Administrative Case Litigation Act

Administrative Case Litigation Act
(Actions for the Judicial Review of Administrative Dispositions)
Article 3, paragraphs (1) and (7)
(1) The term "action for the judicial review of an administrative disposition" as used in this Act means an action to appeal against the exercise of public authority by an administrative agency.
(7) The term "action for an injunctive order" as used in this Act means an action seeking an order, in cases where an administrative agency is about to make a certain original administrative disposition or administrative disposition on appeal which it should not make, to the effect that the administrative agency should not make the original administrative disposition or administrative disposition on appeal.

The judgment in prior instance is quashed.
This case is remanded to the Tokyo High Court.

Concerning the reasons for a petition for acceptance of final appeal stated by the counsels for final appeal, TATEUCHI Hisashi, et al. (except for those excluded)

1. (1) The appellee, who is a member of the Ground Self-Defense Forces, argued that the provisions of Article 76, paragraph (1), item (ii) of the Self-Defense Forces Act, which stipulate that the Prime Minister may order the mobilization of the whole or part of the Self-Defense Forces in the event an armed attack against a country that has close relations with Japan occurred and there is a clear risk that existence of Japan will be threatened, or the people's right to life, liberty, and the pursuit of happiness will be fundamentally reversed, by the armed attack, violate the Constitution of Japan. Based on this argument, the appellee filed this action against the appellant to seek declaration of non-existence of the appellee's obligation to obey a defense mobilization order under the provisions of the same item (hereinafter referred to as the "Defense Mobilization Order").

(2) The Defense Mobilization Order is an order to the Self-Defense Forces as an organization, and is not issued to individual Self-Defense Forces personnel. A person who has supervisory responsibility in the course of duties at a unit or organization that has come to engage in the defense mobilization thereby is to give to each Self-Defense Forces member who belongs to the unit, etc. a specific order relating to the defense mobilization in the course of duties (hereinafter referred to as the "Order in the Course of Duties"). Therefore, this action is considered to seek declaration of non-existence of the appellee's obligation to obey the Order in the Course of Duties.

2. The court of prior instance determined that this action is a non-statutory action for judicial review of administrative disposition (meaning an action for judicial review of administrative disposition which is not legally stipulated as an individual type of litigation in Article 3, paragraph (2) of the Administrative Case Litigation Act and thereafter; the same applies hereinafter) which altered an action for an injunctive order against a disciplinary action on the grounds of disobedience to the Order in the Course of Duties to the form of action to seek declaration of non-existence of the obligation to obey the Order in the Course of Duties, and furthermore, the Defense Mobilization Order. The court of prior instance then determined as summarized below, and revoked the judgment in the first instance, which dismissed this action without prejudice as being unlawful, and remanded this case to the court of first instance.

This action is lawful as it fulfills both the following requirements for filing an action for an injunctive order: serious damage is likely to be caused if a certain original administrative disposition is made (Article 37-4, paragraph (1) of the same Act); there are no other appropriate means to avoid such damage (proviso to the same paragraph).

3. However, the aforementioned determination of the court of prior instance cannot be upheld for the following reasons.

This action is considered to be a non-statutory action for judicial review of administrative disposition to seek declaration of non-existence of public obligation based on the Order in the Course of Duties for the purpose of preventing a disciplinary action on the grounds of disobedience to the Order in the Course of Duties. Such non-statutory action for judicial review of administrative disposition to seek declaration of non-existence of public obligation, which serves as a premise of an adverse disposition in the future, for the purpose of preventing the adverse disposition has the same purpose as an action for an injunctive order against the adverse disposition, and it also does not differ from an action for an injunctive order in that an administrative agency will not be permitted to make the adverse disposition if the claim is upheld. In addition, regarding an action for an injunctive order, requirements for the merits (meaning requirements for a claim to be upheld in a determination of the merits; the same applies hereinafter) include the following requirement: It is found obvious from the provisions of laws and regulations, which give a ground for an administrative disposition, that an administrative agency should not make the administrative disposition (Article 37-4, paragraph (5) of the Administrative Case Litigation Act). In relation to a claim pertaining to an action for an injunctive order, if existence or non-existence of public obligation is questioned as a premise of a relevant administrative disposition, it also becomes subject to proceedings. Taking this into account, the aforementioned non-statutory action for judicial review of administrative disposition can be considered to take the form of action for declaratory judgement and substantially question whether an action for an injunctive order fulfills the requirements for the merits in the proceedings. In that case, it is not considered that, under the same Act, the aforementioned non-statutory action for judicial review of administrative disposition is permitted based on the requirements for filing an action that are less strict than those for an action for an injunctive order. As the requirements for filing an action for an injunctive order, it is necessary to fulfill the requirement that a certain original administrative disposition is about to be made (Article 3, paragraph (7) of the same Act), that is, there is the probability that a certain original administrative disposition will be made by an administrative agency (hereinafter referred to as the "probability requirement"), as a premise that provides the basis for the need of remedy.

Therefore, a non-statutory action for judicial review of administrative disposition to seek declaration of non-existence of public obligation, which serves as a premise of an adverse disposition in the future, for the purpose of preventing the adverse disposition should be considered unlawful if it does not fulfill the probability requirement.

The court of prior instance is inevitably considered to have determined this action to be lawful without considering whether the probability requirement is fulfilled.

4. For the reasons described above, the determination of the court of prior instance contains illegality that obviously affects the judgment. The counsels' arguments are well-grounded, and the judgment in prior instance should inevitably be quashed without the need to consider the propriety of other determinations. This case is remanded to the court of prior instance to be further examined in relation to the aforementioned point, etc.

Accordingly, the Court unanimously decides as set forth in the main text.

Justice YAMAGUCHI Atsushi

Justice IKEGAMI Masayuki

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki

Justice MIYAMA Takuya