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2004 (Ju) 1658

2007.04.27
2004 (Ju) 1658
Minshu Vol. 61, No. 3
Judgment concerning Para.5 of the Joint Communique of the Government of Japan and the Government of the People's Republic of China, and how to treat the claims of citizens of the People's Republic of China against Japan or Japanese citizens or juridical persons arising in the course of prosecution of the Japan-China War
Case to seek damages
Judgment of the Second Petty Bench, quashed and decided by the Supreme Court
Hiroshima High Court, Judgment of July 9, 2004
With regard to the claims of citizens of the People's Republic of China against Japan or Japanese citizens or juridical persons arising in the course of prosecution of the Japan-China War, the competency of these claims in litigations should be deemed to have been lost by Para.5 of the Joint Communique of the Government of Japan and the Government of the People's Republic of China.
Article 14(b) of the Treaty of Peace with Japan, Para.5 of the Joint Communique of the Government of Japan and the Government of the People's Republic of China, the Preamble of the Treaty of Peace and Friendship between Japan and the People's Republic of China

Article 14(b) of the Treaty of Peace with Japan
(b) Except as otherwise provided in the present Treaty, the Allied Powers waive all reparations claims of the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war, and claims of the Allied Powers for direct military costs of occupation.

Article 5 of the Joint Communique of the Government of Japan and the Government of the People's Republic of China
The Government of the People's Republic of China declares that in the interest of the friendship between the Chinese and the Japanese peoples, it renounces its demand for war reparation from Japan.

Preamble of the Treaty of Peace and Friendship between Japan and the People's Republic of China
Japan and the People's Republic of China,
Recalling with satisfaction that since the Government of Japan and the Government of the People's Republic of China issued a Joint Communique in Peking on September 29, 1972, the friendly relations between the two Governments and the peoples of the two countries have developed greatly on a new basis.
Confirming that the above-mentioned Joint Communique constitutes the basis of the relations of peace and friendship between the two countries and that the principles enunciated in the Joint Communique should be strictly observed.
Confirming that the principles of the Charter of the United Nations should be fully respected.
Hoping to contribute to peace and stability in Asia and in the world.
For the purpose of solidifying and developing the relations of peace and friendship between the two countries.
Have resolved to conclude a Treaty of Peace and Friendship and for that purpose have appointed as their Plenipotentiaries:
Japan: Minister for Foreign Affairs Sunao Sonoda
People's Republic of China: Minister of Foreign Affairs Huang Hua
Who, having communicated to each other their full powers, found to be in good and due form, have agreed as follows.
The judgment of prior instance is quashed.
The appeals to the court of second instance filed by the appellees of final appeal are dismissed.
The appellees of final appeal shall bear the cost of appeals to the court of second instance and the cost of final appeal.
I. Outline of the case
1. The appellees of final appeal are citizens of the People's Republic of China. They are persons who assert that during World War II, they were forcibly brought to Japan from North China and caused to be engaged in forced labor by the appellant of final appeal (Appellee X1, Appellee X2, the late A, the late B, and the late C; hereinafter referred to as the "Victims"), or successors of such persons. In this case, the appellees seek damages from the appellant for the appellant's failure to perform obligations, etc., alleging that the appellant breached the obligation of taking care of safety by causing the Victims to be engaged in forced labor under harsh working conditions.
The appellant challenges the alleged cause of responsibility, denying the fact of having forcibly brought the Victims to Japan or causing them to be engaged in forced labor, while also denying the existence of an employment contract or legal relationship equivalent thereto between the appellant and the Victims, from which the obligation of taking care of safety should have arisen. In addition, by invoking the extinctive prescription of the right to claim damages for nonperformance of its obligations and also asserting the waiver of claims as a result of postwar arrangement under the relevant treaties, etc., the appellant argues that its legal liability to satisfy the appellees' claims has been extinguished.

2. With regard to the actual circumstances concerning the appellees' allegation of being forcibly brought to Japan and caused to be engaged in forced labor, the outline of the facts legally determined by the court of second instance is as follows:
(1) Triggered by the Lugou Bridge Incident in July 1937, Japan went into a state of war against China (hereinafter referred to as the "Japan-China War"), and then launched the Pacific War by the attack on Pearl Harbor on December 8, 1941. In the course of prosecuting the war, Japan faced scarcity of labor in the sectors of munitions companies requiring hard labor (e.g. mining, civil engineering and construction, and harbor loading/unloading). In order to cope with such labor shortage, the Japanese government established the national mobilization system under the National Mobilization Act promulgated in April 1938, and also took measures such as having a number of Korean workers immigrate to Japan from the Korean Peninsula which was part of Japan at that time through annexation. However, these measures were unable to solve the serious labor shortage in the hard labor sectors.
(2) Industries such as the coal industry and civil engineering industry, anticipating a labor shortage from a relatively early stage of the war, considered immigration of work force from overseas territories, particularly from North China, and made a request to the Japanese government to realize this project. In response to this request, on November 27, 1942, the Japanese government made a cabinet decision entitled "Concerning the Immigration of Chinese Workers into Japan." In this decision, according to the policy that "in light of the current situation where the labor supply in Japan has been increasingly tight and the labor shortage is serious, especially in the hard labor sectors, the government shall immigrate Chinese workers to Japan in the following manner, thereby having them cooperate in pursuing the goal of establishing the Greater East Asia Co-prosperity Sphere," it was provided that the government was going to immigrate a certain number of Chinese workers to Japan on a trial basis, and then implement immigration on a full-fledged scale while referring to the outcome of the trial. Based on this policy, the government immigrated about 1,400 Chinese workers to Japan on a trial basis during the period from April to November 1943.
(3) Based on the outcome of the trial immigration, by way of the vice-ministerial decision entitled "Concerning the Promotion of Immigration of Chinese Workers to Japan," the Japanese government formulated the guidelines and detailed procedures for the implementation of full-fledged immigration in February 1944. In addition, based on the Implementation Plan for National Mobilization of 1944 adopted by the cabinet decision in August 1944, the government laid down the policy of immigrating 290,000 Korean workers to Japan as well as implementing the full-fledged immigration of 30,000 Chinese workers to Japan. Based on these decisions, 37,524 Chinese workers in 161 groups immigrated to Japan during the period from March 1944 to May 1945.
(4) The appellant is a company engaged in civil engineering and construction, and in war time, it collaborated in the military operations of the Japanese Army moving into the mainland of China, and received a number of orders for railroad construction and road works (the appellant's trade name at that time was Y'). The appellant received an order for the construction of the Yasuno Power Plant in Yamagata-gun, Hiroshima Prefecture with a construction period from June 1943 to March 1947, but was unable to secure a sufficient number of workers for the construction. In April 1944, the appellant, in order to make up for the labor shortage with Chinese workers, filed with the Ministry of Health and Welfare, which had jurisdiction over the allocation and management of immigrated workers, an application for immigration of Chinese workers for the purpose of use in construction of the power plant, and received a quota of 300 workers. Having received the quota, the appellant concluded a contract on the recruitment and acceptance of Chinese workers with the North China Labor and Industry Association, a local organization engaged in recruiting Chinese workers. In July 1944 in Qingdao, in the presence of the Japanese Army, 360 Chinese workers were delivered from the North China Labor and Industry Association to the appellant. The five Victims were included in these Chinese workers.
(5) On July 29, 1944, the 360 Chinese workers delivered to the appellant were put on a cargo ship in Qingdao, and they arrived at the Shimonoseki Port seven days later. Among these Chinese workers on board, three workers died of illness at sea. Subsequently, the Chinese workers were brought to the workplace of the Yasuno Power Plant, placed in the accommodation facility in four groups, and put under constant surveillance of watchmen and police officers. The Chinese workers were caused to be engaged in digging headrace tunnels and in other works in day and night shifts. Since the meal served thrice a day was very poor in quantity and quality, all workers became thin and always hungry. Furthermore, supply of clothes and shoes and the maintenance of sanitary conditions was extremely inadequate, and medical treatment for injured or sick workers was also insufficient. As a result, in March 1945, 13 workers were sent back to China by reason of the incapability of working due to injury or sickness. On July 13, 1945, a conflict occurred among the Chinese workers over the distribution of slaughtered cattle, resulting in the killing by clubbing of two Chinese workers who had served as group leaders and had been regarded as enjoying favorable treatment for their cooperative behavior with the Japanese site foreman and therefore hated by other workers. Among the 16 workers suspected of taking part in this incident and detained in the Hiroshima Prison or other facilities, five workers were killed by the atomic bombing that took place on August 6, 1945, and the 11 other workers were also exposed to radiation.
(6) On August 24, 1945, after the end of the war, the appellant was given instruction by the governmental organization to stop using Chinese workers at the workplace of the Yasuno Power Plant, and stopped using them as instructed. Subsequently, according to the instruction of the Allied Powers to send the Chinese workers back to China, the workers were transported from the workplace of the power plant on November 24, 1945, and then sent back to China from Haenosaki, Nagasaki Prefecture, on November 29. By the date of returning home, among the 360 Chinese workers initially brought into Japan, 26 workers had died in addition to the three workers who had died on the way to Japan. Among the total number of Chinese workers immigrated to Japan and accepted by Japanese workplaces (38,935 workers), 6,830 workers or 17.5% died before going back home.
(7) After the war, the association of the civil engineering and construction companies that had accepted Chinese workers lodged petitions to the government repeatedly, demanding compensation for various damages allegedly arising from the acceptance of Chinese workers. In March 1946, the government decided to take measures to partially accept their demand. Finally, the appellant obtained about 920,000 yen as compensation.
(8) Before brought to Japan, the Victims had lived everyday life with their families. However, they were deceived with job offers or forcibly put onto trucks suddenly, and brought to the detention centers directly or after being captured by the Japanese Army as war prisoners. Subsequently, as explained above, they were immigrated to Japan and caused to be engaged in labor at the workplace of the Yasuno Power Plant. In the course of these events, they did not give consent to go to Japan and work for the appellant based on notice in advance, nor did they conclude an employment contract with the appellant.
Among the Victims, Appellee X1 (aged 16 at the time of immigration) lost sight in both eyes when involved in the accident of trolley derailment that occurred during work. Appellee X2 (aged 18 at the time of immigration) became bedridden due to serious scabies. They both became incapable of working and therefore they were sent back to China in March 1945. The late A (aged 23 at the time of immigration) and the late B (aged 21 or 22 at the time of immigration) were caught in the atomic bombing while they were detained as suspects of the killing of the group leaders described in (5) above. The atomic bombing killed B and left aftereffects on A. The late C (aged 18 or 19 at the time of immigration) was, one day, forced to go to work despite a bad health condition due to a high fever, and beaten by the site foreman by reason of his negligence of work, finally dead.

3. With regard to the waiver of claims, etc. as postwar arrangements, the outline of the facts legally determined by the court of second instance (including the publicly known facts) is as follows:
(1) After World War II, Japan was placed under the occupation of the Allied Powers. On September 8, 1951, in the city of San Francisco, Japan entered into the Treaty of Peace with Japan (hereinafter referred to as the "San Francisco Peace Treaty") with the 48 Allied Powers, and regained its independence upon the treaty coming into force on April 28, 1952. The San Francisco Peace Treaty, which established the basic outline of the postwar arrangements for Japan, aimed to terminate the state of war between Japan and each of the Allied Powers (Article 1(a)), have the Allied Powers recognize the sovereignty of the Japanese people (Article 1(b)), and ultimately solve the issues concerning the territory (Chapter 2), and the claims and property (Chapter 5). However, as will be explained later, Japan was unable to conclude peace with all Allied Powers because China (meaning the State of China with which Japan fought in the Japan-China War; the same shall apply hereinafter) was not invited to the peace conference, India, etc. did not accept invitation, and the Union of Soviet Socialist Republics, etc. refused to sign the treaty.
(2) The San Francisco Peace Treaty includes the following provisions concerning war reparations and treatment of claims, etc.
(a) It is recognized that Japan should pay reparations to the Allied Powers for the damage and suffering caused by it during the war. Nevertheless it is also recognized that the resources of Japan are not presently sufficient, if it is to maintain a viable economy, to make complete reparation for all such damage and suffering and at the same time meet its other obligations (the principal paragraph of Article 14(a)).
(b) Japan will promptly enter into negotiations with Allied Powers so desiring, whose present territories were occupied by Japanese forces and damaged by Japan, with a view to assisting to compensate those countries for the cost of repairing the damage done, by making available the services of the Japanese people in production, salvaging and other work for the Allied Powers in question (Article 14(a)1; the offering of services under this provision may hereinafter be referred to as "service reparation.")
(c) Each of the Allied Powers shall have the right to seize, retain, liquidate or otherwise dispose of all property, rights and interests of Japan and Japanese nationals, etc., which on the first coming into force of the present Treaty were subject to its jurisdiction (excluding some specified property such as property of Japanese natural persons who during the war resided with the permission of the Government concerned in the territory of one of the Allied Powers) (Article 14(a)2).
(d) Except as otherwise provided in the present Treaty, the Allied Powers waive all reparations claims of the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war, and claims of the Allied Powers for direct military costs of occupation (Article 14(b)).
(e) Japan waives all claims of Japan and its nationals against the Allied Powers and their nationals arising out of the war or out of actions taken because of the existence of a state of war, and waives all claims arising from the presence, operations or actions of forces or authorities of any of the Allied Powers in Japanese territory prior to the coming into force of the present Treaty (Article 19(a)).
(3) Although China should have been invited to the peace conference as one of the Allied Powers, both the government of the People's Republic of China, which had been established in 1949, and the government of the Republic of China, which had been driven out of the mainland of China by the former and had moved its base to Taiwan, proclaimed themselves as the only legitimate government representative of China, and opinions were also divided among the Allied Powers regarding which government should be recognized as the government of China. Because of this, neither of the governments were invited to the peace conference. Nevertheless, with regard to Japan's renouncement of its special rights and interest in China (Article 10 of the San Francisco Peace Treaty) and disposition of Japan's overseas assets (Article 14(a)2 of the same treaty), it was recognized that China was entitled to the benefits of the treaty (Article 21).
(4) Subsequently, the government of Japan entered into negotiations with each of the Allied Powers for service reparations under the provision mentioned in (2)(b) above and other issues, and also started negotiations with the nations and regions that did not participate in the San Francisco Peace Treaty so as to enter into bilateral peace treaties which would form a framework for postwar arrangements. In this process, the biggest problem was the relationship with China, which had not been invited to the peace conference. On April 28, 1952, the government of Japan recognized the government of the Republic of China as the legitimate government of China, and entered with it into the Treaty of Peace between Japan and the Republic of China (hereinafter referred to as the "Japan-ROC Peace Treaty"), which came into force on August 5, 1952. The Japan-ROC Peace Treaty provided that the state of war between Japan and the Republic of China shall be terminated on the day when the treaty comes into force (Article 1), and that the issues arising between the two countries from the state of war shall be solved in accordance with the relevant provisions of the San Francisco Peace Treaty (Article 11). In the Protocol, which is an integral part the treaty, it is provided that the Republic of China shall, as a token of its magnanimity and good will, voluntarily waive the benefit of the services to be made available by Japan pursuant to Article 14(a)1 of the San Francisco Peace Treaty (Protocol 1(b)). Furthermore, in the exchange of notes attached to the Japan-ROC Peace Treaty, it is confirmed that the provisions of the treaty shall be applicable to all territories which are now, or which may hereafter be, under the control of the government of the Republic of China.
(5) In China, a conflict continued to exist between the governments of the People's Republic of China and Republic of China over the status of the legitimate government of China. Under such circumstances, the government of Japan, when TANAKA Kakuei was the Prime Minister, decided to recognize the government of the People's Republic of China, instead of the government of the Republic of China, as the legitimate government of China. Following the negotiations for the normalization of diplomatic relations between Japan and China, on September 29, 1972, the Joint Communique of the Government of Japan and the Government of the People's Republic of China (hereinafter referred to as the "Japan-China Joint Communique") was finally signed. The Joint Communique includes the following provisions: "The abnormal state of affairs that has hitherto existed between Japan and the People's Republic of China is terminated on the date on which this Joint Communique is issued" (Para.1); "The Government of Japan recognizes that Government of the People's Republic of China as the sole legal Government of China." (Para.2); "The Government of the People's Republic of China declares that in the interest of the friendship between the Chinese and the Japanese peoples, it renounces its demand for war reparation from Japan." (Para.5)
On August 12, 1978, the government of Japan and the government of the People's Republic of China entered into the Treaty of Peace and Friendship between Japan and the People's Republic of China (hereinafter referred to as the "Japan-China Peace and Friendship Treaty"), which came into force on October 23, 1978. In the preamble of the treaty, it is provided that both countries confirm that the principles enunciated in the Joint Communique should be strictly observed.

4. The court of the second instance entirely upheld the appellees' claims to seek payment to each of them of 5,500,000 yen with delay damages, on the following grounds.
(1) The series of acts conducted by the appellant, i.e. receiving Chinese workers including the Victims in Qingdao, transferring them to Japan, and causing them to be engaged in harsh labor at the construction site of the Yasuno Power Plant, should inevitably be criticized as forcibly bringing these workers into Japan and causing them to be engaged in forced labor.
(2) Although the appellant did not conclude a contract directly with these Chinese workers, there was a special relationship similar to employment between the parties, and the appellant should be deemed to have assumed the obligation of taking care of safety as its ancillary obligation. Since it is obvious that the appellant did not fulfill this obligation, the appellant should inevitably be held responsible for nonperformance of obligation.
(3) It should be deemed that it had not been objectively possible for Appellees X1 and X2 and the persons to whom other appellees succeeded to actually exercise the right to claim damages for the breach of the obligation of taking care of safety, until the Law of the People's Republic of China on the Control of the Exit and Entry of Citizens was put into force in 1986, opening a path for Chinese citizens to go abroad, and therefore it should be construed that the extinctive prescription of the aforementioned right to claim damages commenced to run from the date of enforcement of the said Law. Under such understanding, the 10-year period of prescription had already expired by the time of the filing of this suit but it had not yet expired at the time when Appellees X1 and X2 and the persons to whom other appellees succeeded entered into negotiations for compensation with the appellant in August 1993. During the period between these points of time, Appellees X1 and X2 and the persons to whom other appellees succeeded seem to have been facing extreme difficulty in actually exercising the right to claim damages due to economic hardship and lack of information. It cannot be denied that these obstacles (economic hardship and lack of information) were caused partly because the appellant had forcibly brought the Victims and caused them to be engaged in forced labor. The appellant benefited from the acceptance of Chinese workers by obtaining state compensation. The appellant prolonged the compensation negotiations with the appellees while avoiding showing a clear stance, thereby delaying the filing of the suit. Taking into consideration all of these circumstances, the appellant's attempt to invoke extinctive prescription is impermissible as an abuse of right.
(4) The appellant argues that as a result of the wavier of claims under the Japan-ROC Peace Treaty or the Japan-China Joint Communique, the legal liability of Japan and Japanese citizens to satisfy the appellees' claims in this suit has been extinguished. However, Para.5 of the Japan-China Joint Communique does not expressly provide waiver of claims held by Chinese citizens, and what the government of the People's Republic of China is to renounce under the Joint Communique is nothing more than its "demand for war reparation." Furthermore, since the Japan-ROC Peace Treaty was entered into between Japan and the Republic of China, it is questionable whether the treaty is directly applicable to the appellees, who are citizens of the People's Republic of China. Consequently, the appellant's argument mentioned above cannot be accepted.

II. Concerning Reason 4 for petition for acceptance of final appeal argued by the appeal counsels, HIGUCHI Shunji, TAKANO Yasuhiko, and IHOTA Toshiharu
1. The appeal counsels allege that the determination of the court of second instance mentioned in I-4(4) above is in violation of laws and regulations. We cannot affirm the part of the said determination rejecting the appellant's defense of waive of claims under the Japan-China Joint Communique, on the following grounds.

2. Concerning the waiver of claims as the basic principle of postwar arrangements
(1) The San Francisco Peace Treaty, which established the basic outline of the postwar arrangements for Japan, endorsed Japan's obligation to make war reparations (money and other benefits to be provided by the defeated country to the victor country upon concluding peace between them) for the Allied Powers, and entrusted the Allied Powers with the disposition of Japan's overseas assets under the jurisdiction of the Allied Powers with the view to effectively appropriating such assets to cover part of war reparations (Article 14(a)2). On the other hand, the treaty gave consideration to Japan's debt capacity, by recognizing that the resources of Japan were not sufficient to make complete reparation (principal paragraph of Article 14(a)), and declared that specific arrangements for war reparations including service reparation shall be determined through negotiations between Japan and each of the Allied Powers (Article 14(a)1). The basis of such arrangements for war reparations was "disposition of claims." In this context, the term "disposition of claims" refers to disposition of claims arising between the nations at war or nationals thereof in the course of prosecution of the war, which can be negotiated separately from war reparations. With regard to such claims, including claims held by individuals, the treaty declared that Japan and the Allied Powers should mutually waive all claims arising between them and their nationals (which has been constructed to include juridical persons) in the course of prosecution of the war (Article 14(b), Article 19(a)).
(2) Thus, the San Francisco Peace Treaty established a framework for postwar arrangements for Japan wherein, on condition that Japan and the Allied Powers should mutually waive all claims arising in the course of prosecution of the war, including claims held by individuals, Japan shall admit its obligation to make war reparations for the Allied Powers and entrust the Allied Powers with the disposition of its overseas assets under the jurisdiction of the Allied Powers, and agreed that specific arrangements for war reparations including service reparation would be decided through individual negotiations with each of the Allied Powers. In light of the significance of the San Francisco Peace Treaty, which was entered into between Japan and the 48 Allied Powers and by which Japan regained its independence, the said framework should have been effective also when Japan entered into peace treaties, etc. with the nations and regions that did not participate in the San Francisco Peace Treaty in order to make postwar arrangements (this framework shall hereinafter be referred to as the "Framework of the San Francisco Peace Treaty"). The Framework of the San Francisco Peace Treaty was designed to achieve the objective of the peace treaty, i.e. ultimately terminating the state of war between Japan and the 48 Allied Powers and building unshakable friendly relationships between them for the future. The reason why such a framework was established may be that if, despite the entry into the peace treaty, the issues concerning various claims arising in the course of prosecution of the war were to be solved by way of the exercise of rights in individual, ex-post civil litigations, that would cause both Japan and the Allied Powers as well as their citizens to shoulder excessive burden that could hardly be predicted at the time of the entry into the peace treaty and thereby bring about confusion, which might be an obstacle to the achievement of the objective of the peace treaty.
(3) Considering that the purpose of the waiver of claims under the Framework of the San Francisco Peace Treaty is to avoid leaving the issues concerning claims to the solution by way of the exercise of rights in individual, ex-post civil litigations, it is appropriate to construe that the term "waiver" of claims in this context does not mean to effectively extinguish claims but it only means to have the competency of these claims in litigations lost. Therefore, even after all claims arising in the course of prosecution of the war have been waived under the Framework of the San Francisco Peace Treaty, the obligors are not prevented from voluntarily and spontaneously taking measures to satisfy specific claims in light of the contents thereof. In this respect, as publicly known, with regard to the interpretation of the provision of Article 14(b) of the San Francisco Peace Treaty, Prime Minister YOSHIDA Shigeru declared the possibility that Japan would take such voluntary measures in his letter addressed to the representative of the Kingdom of the Netherlands, Minister of Foreign Affairs Stikker.
The appellees argue that, apart from the case where nations waive their right of diplomatic protection, private rights that are inherent for citizens cannot be restricted by an agreement between nations. However, upon entering into a peace treaty to end a war, each nation has the power to dispose all relevant claims including claims held by individuals based on its sovereignty over its citizens. Therefore, the appellees' argument cannot be accepted.
(4) Following the entry into the San Francisco Peace Treaty, the government of Japan and the governments of the contracting states held negotiations according to the treaty regarding war reparations including service reparation, which resulted in the entry into bilateral reparation agreements (with the Republic of the Philippines, etc.) or the waiver of claims for reparations (by the Lao People's Democratic Republic, etc.). These agreements were of course made based on the mutual waiver of claims including claims held by individuals. The government of Japan carried out measures for resolution of war reparation issues and disposition of claims by also entering into bilateral peace treaties or reparation agreements with each of the nations and regions that did not participate in the San Francisco Peace Treaty. These bilateral treaties and agreements also expressly provide that both parties shall mutually waive all claims arising in the course of prosecution of the war, including claims held by individuals (Article 6 of the Treaty of Peace between Japan and India, Article 5 of the Treaty of Peace between Japan and the Union of Burma, Article 3 of the Agreement between Japan and Thailand concerning Settlement of "Special Yen Problem", Article 3 of the Japan-Holland Reparations Protocol regarding some Private Claims from Hollanders, Para.6 of the Japan-Soviet Joint Declaration, Article 4 of the Agreement on the Reestablishment of Normal Relations between Japan and the People's Republic of Poland, Article 4 of the of Peace Treaty between Japan and the Republic of Indonesia, Article 2 of the Agreement of September 21, 1967, between Japan and the Republic of Singapore, Article 3 of the Agreement between Japan and the United States of America on the Trust Territory of the Pacific Islands). The provision of Article 2 of the Agreement of September 21, 1967, between Japan and Malaysia is written in a somewhat abstract way, which may be the only exception: "The government of Malaysia agrees that all problems arising from the unfortunate incidents that occurred during World War II, which might affect a good relationship between Japan and Malaysia, have been hereby settled completely and ultimately." This agreement cannot be construed to provide for disposition of claims that is different from the disposition of claims under the San Francisco Peace Treaty and the subsequent bilateral peace treaties. Article 2 of the agreement can also be construed to mean to follow the Framework of the San Francisco Peace Treaty wherein Japan and the contracting parties agreed to waive all claims arising in the prosecution of the war, including claims held by individuals.

3. Concerning the waiver of claims under the Japan-ROC Peace Treaty
(1) As explained above, the Japan-ROC Peace Treaty entered into with the government of the Republic of China addresses postwar arrangements between Japan and China. Article 11 of the treaty provides that "any problem arising between Japan and the Republic of China as a result of the existence of a state of war" shall be settled in accordance with the relevant provisions of the San Francisco Peace Treaty. This provision can be construed to necessarily cover the issue of disposition of claims including claims held by individuals. Therefore, we should construe that all claims of China and Chinese citizens arising in the course of prosecution of the Japan-China War have been waived in accordance with Article 14(b) of the San Francisco Peace Treaty. Furthermore, as mentioned above, Protocol 1(b) provides that the Republic of China shall, "as a sign of magnanimity and good will towards the Japanese people," voluntarily waive service reparation.
(2) By the time of the conclusion of the Japan-ROC Peace Treaty in 1952, the government of the Republic of China had been driven away from the mainland of China and its control had been limited to the Island of Taiwan and other neighboring islands. Therefore, it may be questionable whether or not the government of the Republic of China had the power to enter into a peace treaty to make peace after the Japan-China War. However, although the countries were divided into two groups at that time regarding which government should be recognized as the government of China, i.e. those supporting the government of the Republic of China (e.g. the United States), and those supporting the government of the People's Republic of China (e.g. the United Kingdom), the former group outnumbered the latter group. In addition, as is publicly known, it is the government of the Republic of China that held the authority to represent China in the United Nations. Under such circumstances, the government of Japan recognized the government of the Republic of China as the legitimate government of China, and for this reason, it should be concluded that there was no obstacle to the government of the Republic of China in entering into a peace treaty to make peace after the Japan-China War.
(3) However, it is true, as explained above, that at the time of the conclusion of the Japan-ROC Peace Treaty, the control of the government of the Republic of China was limited to the Island of Taiwan and other neighboring islands, and in light of this fact, the exchange of notes attached to the treaty stated that "the terms of the present Treaty shall, in respect of the Republic of China, be applicable to all the territories which are now, or which may hereafter be, under the control of its Government." We should find it fully possible to construe this statement to only indicate the possibility of applying the provisions on war reparations and disposition of claims to the mainland of China that was under the control of the government of the People's Republic of China.
Consequently, we cannot firmly conclude that Article 11 of the Japan-ROC Peace Treaty and Protocol 1(b) providing for war reparations and waiver of claims, including claims held by individuals, are applicable in the mainland of China which was never placed under the control of the government of the Republic of China after the conclusion of the treaty. Nor can we consider that these provisions are necessarily effective with regard to Chinese citizens who live in the mainland of China. Since it is obvious that the appellees are Chinese citizens who live in the mainland of China, we cannot conclude that the wavier of claims under the treaty is necessarily effective with regard to the appellees.

4. Waiver of claims under Para.5 of the Japan-China Joint Communique
(1) Para.5 of the Japan-China Joint Communique states as follows: "The Government of the People's Republic of China declares that in the interest of the friendship between the Chinese and the Japanese peoples, it renounces its demand for war reparation from Japan." When reading this language, we must say that the statement does not clearly specify who is entitled to "demand" war reparation that is to be renounced under the Joint Communique, or more specifically, it is not very clear whether the statement means to cover disposition of claims in addition to war reparations between Japan and China, and if it covers disposition of claims, whether it means to cover the waiver of claims held by individual citizens of the People's Republic of China.
(2) However, reviewing the negotiation process which has been publicly known to date based on the evidential materials such as the publicly disclosed official records on the negotiations for the normalization of diplomatic relations between Japan and China as well as the memories written by the persons involved in the negotiations, we should construe that the Japan-China Joint Communique is a peace treaty in its substance, and we cannot construe that the Joint Communique provides for arrangements for war reparations and disposition of claims that are different from those under the Framework for the San Francisco Peace Treaty.
(a) In the Japan-China negotiations for the normalization of diplomatic relations, the government of the People's Republic of China insisted on treatment based on the three principles for the restoration of relations: (i) The government of the People's Republic of China is the only legal government to represent China; (ii) Taiwan is an integral part of the territory of the People's Republic of China; (iii) The Japan-ROC Peace Treaty is unlawful and void, and therefore should be repealed. From the viewpoint of the People's Republic of China and these three principles, peace had not yet been made after the Japan-China War, and therefore the government of the People's Republic of China needed to make the Japan-China Joint Communique also serve as a peace treaty, and in this context, a declaration of the end of the war and provisions on war reparations and disposition of claims were indispensable in the Joint Communique.
On the other hand, the government of Japan had recognized the government of the Republic of China as the legitimate government of China and entered into the Japan-ROC Peace Treaty with that government. Due to this background, the government of Japan might have been able to terminate the treaty, but with regard to the issues concerning the end of the Japan-China War as well as war reparations and disposition of claims, it had no choice other than to stand on the premise that these issues had already been formally settled under the treaty (Although, as explained above, it cannot be firmly concluded that the provisions of the Japan-ROC Peace Treaty on war reparations and disposition of claims are applicable in the mainland of China, the government of Japan at that time did not have such a view).
(b) In the Japan-China negotiations for the normalization of diplomatic relations, the government of the People's Republic of China and the government of Japan fully recognized that they inevitably had to promote the negotiations based on their own premises described above, and therefore, in an attempt to realize postwar arrangements relating to the Japan-China War that would be compatible with both parties' standpoints, efforts were made to find a suitable expression to be included in the Joint Communique. As a result, in the Premise of the Japan-China Joint Communique, it was stated that Japan would take the "position to fully understand" the three principles for the restoration of relations advocated by the government of the People's Republic of China. The expression of the provision of Para.1 of the Japan-China Joint Communique, "The abnormal state of affairs that has hitherto existed between Japan and the People's Republic of China is terminated on the date on which this Joint Communique is issued," was adopted because it could be construed, from the standpoint of China, to be a declaration of the end of the Japan-China War, whereas from the standpoint of Japan, it could be construed to mean that the lack of diplomatic relations between Japan and the People's Republic of China had been solved.
(c) In light of the process of the Japan-China negotiations for the normalization of diplomatic relations described above, the government of the People's Republic of China obviously regards Para.5 of the Japan-China Joint Communique as a creative provision for establishing all postwar arrangements covering not only war reparations but also disposition of claims. The government of Japan can be deemed to have also agreed about the expression of the provision of the said paragraph, while maintaining its view that the issues of war reparations and disposition of claims were already settled under the Japan-ROC Peace Treaty but also recognizing the said paragraph as meaning to confirm that in relation to the government of the People's Republic of China, substantially the same arrangements as those under the said treaty have been made. We should conclude that the Japan-China Joint Communique issued through the process explained above is in substance a peace treaty not only for the government of the People's Republic of China but also for the government of Japan.
As mentioned above, it is obvious that the Framework of the San Francisco Peace Treaty was critically significant for achieving the objective of the peace treaty, and that it would hinder the achievement of the objective of the peace treaty to, departing from this framework, only settle the issue of war reparations while leaving the issue of disposition of claims unsolved, or exclude claims held by individuals from the scope of claims to be waived. Also with regard to the Japan-China Joint Communique, we cannot find any circumstances where, upon its issuance, both parties inevitably had to choose to settle the issue of disposition of claims in such an inappropriate manner. Nor can we find any evidence showing that any question was proposed or discussed from such a perspective in the Japan-China negotiations for the normalization of diplomatic relations. Therefore, we cannot construe that the Japan-China Joint Communique provides for arrangements that are different from those under the Framework for the San Francisco Peace Treaty only because the language of the provision of Para.5 of the Japan-China Joint Communique does not clearly specify individuals as the subject who are entitled to "demand" war reparation.
(d) Consequently, we should conclude that the Japan-China Joint Communique is intended, as the Framework of the San Francisco Peace Treaty, to clearly declare that both countries will mutually waive all claims arising in the course of prosecution of the war, including claims held by individuals.
(3) Based on the interpretation of the provision of Para.5 of the Japan-China Joint Communique shown above, we examine whether the said provision has the nature of legal norm and legal effect.
Firstly, since the Japan-China Joint Communique has not been treated as a treaty or ratified by the Diet in Japan, a question could arise as to whether or not it can be a legal norm under international law. However, it is obvious that the People's Republic of China recognized the Joint Communique as a creative legal norm in international law, and in this context, we can acknowledge that the Joint Communique is a legal norm at least as a unilateral declaration made by the People's Republic of China. Furthermore, in the Japan-China Peace and Friendship Treaty that is indisputably categorized as a treaty under international law, it has been confirmed that the principles enunciated in the Joint Communique should be strictly observed, and because of this, the contents of Para.5 of the Japan-China Joint Communique should be deemed to have acquired the nature of legal norm as a treaty in Japan as well. In any case, it is obvious that the Joint Communique can be recognized as having the nature of legal norm under international law.
As explained above, since under the Framework of the San Francisco Peace Treaty, the waiver of claims means forfeiture of competency to make requests based on the claims at court, there is no need to take measures under domestic law to give effect to such forfeiture, and therefore the waiver of claims provided in Para.5 of the Japan-China Joint Communique should be deemed to be effective also under national law.
(4) Consequently, it should be concluded that with regard to the claims of citizens of the People's Republic of China against Japan or Japanese citizens or juridical persons arising in the course of prosecution of the Japan-China War, the competency of citizens of the People's Republic of China to make requests based on their claims at court should be deemed to have been lost by Para.5 of the Japan-China Joint Communique, and where such a claim is asserted at court and the obligor argues, as a defense, the waiver of the claim under the said paragraph of the Joint Communique, the claim should inevitability be dismissed.

5. Conclusion
The claims asserted in this suit are claims for damages for the breach of the obligation of taking care of safety that occurred when forcibly bringing Chinese workers into Japan and causing them to be engaged in forced labor in the course of prosecution of the Japan-China War. According to the facts mentioned above, the Victims are found to have suffered tremendous pains mentally and physically, but we must say that their claims are included in the scope of claims waived under Para.5 of the Japan-China Joint Communique, and although voluntary measures may be taken to satisfy the claims, the Victims should not be allowed to assert their claims at court. Consequently, the appellant's defense arguing the waiver of claims is well-grounded, and the determination of the court of second instance that is contrary to this reasoning contains a violation of laws and regulations that apparently affects the judgment. The appellant's argument is well-grounded, and the judgment of prior instance should inevitably be quashed. Based on our holdings shown above, without needing to make judgment on other points, we should conclude that the appellees' claims are groundless, and the judgment of the court of the first instance that dismissed their claims is justifiable in its conclusion. Therefore, the appeals to the court of second instance filed by the appellees of final appeal should be dismissed.
Lastly, as explained in 2(3) above, even under the Framework of the San Francisco Peace Treaty, the obligors are not prevented from voluntarily and spontaneously taking measures to satisfy specific claims. Taking into consideration various circumstances concerned, e.g. the Victims suffered tremendous pains mentally and physically whereas the appellant received considerable benefits by causing Chinese workers to be engaged in forced labor under the aforementioned harsh working conditions and it further obtained state compensation, we expect the appellant and other parties concerned to make efforts to give relief to the Victims.

Therefore, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices.
Justice NAKAGAWA Ryoji
Justice IMAI Isao
Justice FURUTA Yuki
(This translation is provisional and subject to revision.)