2000(Gyo-Tsu)No.369, (Gyo-Hi)No.352

Date of the judgment	2003.01.17
Case number	2000(Gyo-Tsu)No.369, (Gyo-Hi)No.352
Reporter	Minshu Vol.57, No.1, at 1
Title	Judgment upon the case concerning the obligation of members of the prefectural assembly to return the unjust enrichment corresponding to travel expenses to the prefecture, which they received for participating in the National Rubber-ball Baseball Tournament for Prefectural Assembly members.
Case name	Case to seek the return of travel expenses, daily allowance and accommodation expenses for participating in the baseball tournament held by the Tokushima prefectural assembly.
Result	Judgment of the Second Petty Bench, partially dismissed and partially quashed and decided by the Supreme Court
Court of the Second Instance	Takamatsu High Court, Judgment of September 28, 2000
Summary of the judgment	1. Given the facts determined by the original instance; that members of the prefectural assembly participated in the National Rubber-ball Baseball Tournament for Prefectural Assembly Members solely for competing for the pennant without any opportunities to exchange opinions or to strengthen mutual exchange, and without any plan of official events such as visiting athletic facilities, this behaviour cannot be regarded as the duty of an assembly member. Therefore, the assembly members who participated in the tournament shall return the unjust enrichment to the prefecture corresponding to the amount received for travel expenses. 2. In the event that the travel order by the prefectural assembly chairperson to members to participate in the National Rubber-ball Baseball Tournament for Prefectural Assembly Members held in 1987 was illegal, the act of undertaking to provide expenses and the issuance of a travel order by the assistant staff member to the prefectural governor to the said assembly members cannot be regarded as illegal for contravening obligations under finance and accounting regulations considering the facts determined by the original instance; that the tournament has been held annually since 1949 with the purpose of supporting the National Sports Festival, whereby in 1987, every prefectural assembly became a participant in the tournament, and in 1997, more than 1400 assembly members participated from 47 prefectural assemblies, where its purpose was, in addition to supporting the National Sports Festival that was held, to strengthen friendships and sporting spirit among assembly members, as well as to contribute to the development of local administration. 3. Given the facts that, in accordance with the assembly decision of sending assembly members to the National Rubber-ball Baseball Tournament for Prefectural Assembly Members, the travel order, that was issued to the secretariat staff members of the prefectural assembly as a type of work order, appointing them to conduct coordination with the headquarters of the executive committee, transportation and equipment, to take records and conduct other subordinate activities for the attending assembly members, it cannot be concluded that there was an apparent flaw with the said order, therefore, the staff members attending according to the order don't assume an obligation to return unjust enrichment corresponding to the paid travel expenses to the prefecture.
References	(concerning 1, 2 and 3) article 242-2(1)(iv) of the Local Autonomy Law (before the amendment by the Law No. 4 of 2002) In the case where a resident of the ordinary local public entity makes a demand in accordance with paragraph 1 of the previous article, when the resident has an objection to the result of the findings of an audit by the audit committee or recommendation in accordance with paragraph 3 of the previous article, with regard to measures taken by the assembly of an ordinary local public entity, chairperson, other executive organs or staff members in accordance with paragraph 7 of the previous article, or when a parliamentary assembly, chairperson or other executive organs or staff members don't take measures in accordance with paragraph 7 of the previous article, the resident shall have the right to bring a lawsuit as follows concerning the illegal act or neglected facts provided in paragraph 1 of the previous article. However, claims provided in (i) are allowed only when there is a possibility of occurring damages caused by the act which are irretrievable for the local public entity. Among claim provided in (iv), the demand for return of an unjust enrichment from staff members is only allowed when the staff member still has the enrichment. (iv)Claim for damages and return of unjust enrichment against a staff member who subrogates the ordinary local public entity, or declaratory action claiming nonexistence of legal relations, claim for damages, return of unjust enrichment, restoration or abatement of nuisance against the opposite party concerning the said act or neglected facts. (concerning 1 and 2) Article 203(3) of the Local Autonomy Law The person provided in paragraph 1 shall have compensation for expenses required for the job. (concerning 1 and 3) Article 703 of the Civil Code A person, who without any legal ground derives a benefit from the property or services of another and thereby causes loss to the latter, is bound to return such benefit to the extent that it still exists. (concerning 3) Article 204(1) of the Local Autonomy Law (before the amendment by Law No. 107 of 1999) The local public entities shall pay a salary and travel expenses to the chief executive officers, full-time staff members, who are their subsidiary organs, full-time commissioners, full-time audit commissioners, secretary generals, chief secretaries, secretaries and other full-time staff members, secretary generals to commissioners, assistant secretaries or other staff members for committees or commissioners and other full-time staff members of the local public entities. Article 32 of the Local Public Service Law In performing the duty, a staff member shall observe laws, ordinances, regulations of local public entities and rules provided by organs of local public entities, and the staff shall obey the job instructions from his superior.
Main text of the judgment	1. The Jokoku-appeal by appellant A shall be dismissed. 2. The part concerning appellant B, C, and D in the original judgment shall be quashed, and the same part in the first judgment shall be revoked. 3. The lawsuit against the appellant B brought by the appellee shall be dismissed (Kyakka) and the claim against the appellant C and D by the appellee shall be dismissed. 4. The appellant A shall owe the cost of the appellant's own Jokoku-appeal, however the whole of the other costs incurred between the appellants and the appellee shall be owed by the appellee.
Reasons	No.1 Summary of the facts of the case 1. This is the case where the appellee, a resident of Tokushima prefecture (hereinafter referred to as "the Prefecture") claimed that the travel expenses paid to prefectural assembly members or staff members of the secretariat to participate in the 49th National Rubber-ball Baseball Tournament for Prefectural Assembly Members (hereinafter referred to as "the Baseball Tournament of the case" was illegal, and in accordance with Article 242-2 (1)(iv) of the Local Autonomy Law (before the amendment by Law No. 4 of 2002, hereinafter referred to as "the Law"), by subrogating the Prefecture and brought a lawsuit against1 the appellant B, a former director-general of the prefectural assembly, the appellant C, a former deputy director-general and chief of general affairs division, claiming damages equivalent to the amount of the whole travel expenses because they could be regarded as "said staff members" provided by the subparagraph, and 2 the appellant A, a former prefectural assembly member and the appellant D, a former deputy chief of general affairs division, claiming return of unjust enrichment or damages equivalent to the amount of the whole travel expenses because they could be regarded as "other party to the negligent act" provided by the same subparagraph, respectively. 2. Following is a summary of the facts legally determined by the original instance. (1) The National Rubber-ball Baseball Tournament for Prefectural Assembly Members (hereinafter referred to as "the National Baseball Tournament") has been held annually with the purpose of supporting the National Sports Festival (hereinafter referred to as "Kokutai") since 1949 in the host prefecture of the Kokutai at that time. The number of participants of the National Baseball Tournament was 19 prefectures at the first Tournament, however, at the 39th Tournament in 1987, it was the first time for all prefectural assemblies to participate, whereas the Tokushima prefectural assembly has participated in each Tournament since the fourth Tournament in 1952, with the exception of the 29th Tournament in 1977. (2) The Baseball Tournament of the case was hosted by the National Chairperson's Conference of Prefectural Assemblies and the Osaka prefectural assembly and it was cosponsored by Osaka prefecture, Osaka city, Sakai city and Yao city, for the purpose of "contributing to the development of the local administration by supporting the 52nd National Sports Festival (Namihaya Kokutai) and promoting amity and sporting spirit among assembly members, and was held in Osaka city for three days from August 23, 1997, to August 25. More than 1400 assembly members from 47 prefectural assemblies participated in the Baseball Tournament. From the prefectural assembly of the case, 26 assembly members participated, accompanied by 9 staff members of the secretariat of the prefectural assembly for communication and coordination with the head quarters of the executive committee, transportation and management of equipment, taking records and conducting other auxiliary jobs. (3) The chairperson of the prefectural assembly at the time, decided to participate in the tournament after he received the notice of the event from the Chairperson of the Osaka prefectural assembly at the time, the President of the Executive Committee of the Baseball Tournament of the case, and issued a travel order on August 18, 1997 to 26 assembly members to participate in the Baseball Tournament of the case. Due to appellant B, the actual person authorized to issue travel orders being on sick leave at the time, the appellant C decided in his place to issue a travel order to 9 staff members of the secretariat of the prefectural assembly, taking the usual number of attendants into consideration. (4) The appellant C undertook to provide travel expenses and issued an expenditure order concerning total travel expenses of 1,832,761 yen, to be paid to the participating assembly members in the Baseball Tournament of the case and the attending staff members of the secretariat of the assembly. (5) The appellant A participated in the Baseball Tournament of the case as an assembly member and received travel expenses. The appellant D attended the Baseball Tournament of the case as a staff member of the secretariat of the assembly and received travel expenses. No.2 Concerning the reason of the Jokoku-appeal by the attorneys for the Jokoku-appeal, SHIMAUCHI Yasuo and SHIMAUCHI Yasuhiko Jokoku-appeal for a civil case to the Supreme Court can only be accepted when it corresponds to a case provided by Article 312(1) and (2) of the Code of Civil Procedure. The reason for the Jokoku-appeal of the case is claimed on unconstitutionality and lack or discrepancy of reason, however, it's claimed only on error of facts and violation of laws in substance, therefore, it cannot be regarded as the reason provided in the said paragraphs. No.3 Ex officio consideration "The said staff member" in Article 242-2(1)(iv) is understood to be the person who has the authority of performing financial and accounting acts, whose adequacy is the question at stake in the lawsuit, in accordance with the law itself, or a person who is entrusted the authority from the above person (see 1980(Gyo-Tsu) No.157 of the Supreme Court, April 10, 1987, judgment of the Second Petty Bench, Minshu Vol.41, No.3, at 239). In the Prefecture of the case, the act of undertaking to provide travel expenses and the act of issuing an expenditure order by the assembly is to be decided exclusively by the chief of the general affairs division of the secretariat of the assembly (Article 12 of the regulations for the decision of office duties in Tokushima Prefecture (instruction of Tokushima Prefecture No.160 of 1967, before the amendment by instruction No.13 of 1997, hereinafter referred to as "Regulations for Decision") and Appendix No.3), and there are no grounds for thinking that any regulation or instruction stipulates that the director-general of the secretariat is authorized to perform an act concerning expenditure of travel expenses. In the end, in this case, the appellant B, the director-general of the secretariat of the assembly is not to be regarded as "the said staff member" provided in Article 242-2(1)(iv) of the Law, and the lawsuit against the appellant is illegitimate. In conclusion, in the above decision of the original instance and the first instance deciding that the claim on the appellant is to be approved, apparent violation of laws can be seen which have affected the judgment, therefore, the above part of the original judgment shall be quashed, the above part in the first judgment shall be avoided and the lawsuit against the appellant shall be dismissed (Kyakka). No.4 Concerning the Jokoku-appeal reason No.5 by the attorneys for the Jokoku-appeal, SHIMAUCHI Yasuo and SHIMAUCHI Yasuhiko An assembly of an ordinary local entity can send its assembly members both home and abroad at its own discretion, when it is rationally necessary while appropriately performing the duty as a decision making organ of the ordinary local entity. However, when an excess or abuse in the use of the discretionary power can be seen, the decision by the assembly to send the members can be regarded as illegal (see 1973(Gyo-Tsu) No.149 of the Supreme Court on March 10, 1988, judgment of the First Petty Bench, Saibanshu Minji No.153, at 491). Taking a look at the case from this point of view, it cannot be concluded that there is no necessity of sending assembly members to a baseball tournament to be held for the purpose of obtaining knowledge and experience useful for the development of local administration through exchanges of assembly members in addition to promotion and promulgation of sport by supporting the Kokutai. However, the original instance found the facts as follows. 1 The Baseball Tournament of the case was held only for the purpose of a baseball game championship by assembly members and there were no opportunities for exchanging opinion or promoting mutual understanding with assembly members of other prefectures, and in fact, there were no evidence of conducting exchanges of opinion or exchanges of mutual understanding that could contribute to the formation of partnerships or cooperation among local public entities. 2 Inspection of sports facilities was not planned as an official event of the Baseball Tournament of the case, after the Tokushima prefectural assembly team was defeated, only 8 members of the total 26 members participated in the inspection of the Osaka Dome, a proposed venue of the public competition in the Kokutai to be held in autumn. From all the available evidence, including other evidence also revealed, it was concluded that an excess or abuse of discretionary power could be seen in the travel order issued to the assembly members to send them to the Baseball Tournament and the travel order issued to the attending staff members of the secretariat of the assembly. The decision of the original instance can be approved and it doesn't contravene the cited judicial precedents. Therefore, this argument cannot be accepted. No.5 Concerning the Jokoku-appeal reason No.6 by the Jokoku-appeal attorneys, SHIMAUCHI Yasuo and SHIMAUCHI Yasuhiko 1. Given the above facts No.1, the original instance has decided as follows and approved the claim against the appellant C by the appellee entirely and the claim against the appellant A and D partially. (1) Both the travel orders issued to the assembly members and to the staff members are illegal, therefore, the act of undertaking to provide travel expenses and the expenditure order are also illegal. (2) The appellant C, when undertaking to provide travel expenses and giving the expenditure order, should have recognized that the expenditure of travel expenses was illegal when he examined the necessity with ordinary care, not obeying the conventional customs however, he didn't perform his duty with care, therefore, it is evident that he was negligent. (3) The appellant A received the travel expenses by participating in the Baseball Tournament of the case, and it was conducted based on illegal expenditure lacking legal reasons, therefore, he shall return the amount equivalent to the received travel expenses as unjust enrichment. (4) The appellant D received travel expenses for accompanying the assembly members who participated in the Baseball Tournament of the case, however it was conducted on illegal expenditure lacking legal reasons, therefore, he shall return the amount equivalent to the received travel expenses as unjust enrichment. 2. However, within the above decision by the original instance, the part that partially approved the claim against the appellant A demanding return of unjust enrichment can be accepted, but the rest of the decision cannot be accepted. The reasoning for the decision is as follows: (1) Concerning the claim against the appellant A Summary 1: Given the facts mentioned in the above No.4, to participate in the Baseball Tournament of the case cannot be regarded as the duty of an assembly member, therefore, it is to be concluded that the assembly member who participated in the Baseball Tournament of the case received travel expenses without legal reasons. In conclusion, the decision of the original instance that approved the obligation to return the unjust enrichment by the appellant A is justifiable and shall be accepted. (2) Concerning the claim against the appellant C Although there are illegal reasons in the preceding causal act, the case that a staff member bears liability to damage in accordance with Article 242-2(1)(iv) is limited to the case when the staff member breaches the duty provided in the financial and accounting regulations based on the said preceding causal act (see 1986 (Gyo-Tsu) No.133 of the Supreme Court on December 15, 1992, judgment of the Third Petty Bench, Minshu Vol.46, No.9, at 2753). As already mentioned, an assembly can send its members at its own discretion. A chief executive officer of an ordinary public entity is authorized to execute the budget, however, he neither has the authority to control and supervise the assembly nor correct the autonomous acts of the assembly. Therefore, concerning the assembly's decision of sending assembly members, so long as it is not unreasonable in excess and consequently, there are no defects that cannot be overlooked from the viewpoint of securing appropriateness of budget execution, it is reasonable to understand that the assembly's decision must be respected, and in accordance with this decision, financial and accounting measures must be taken, and this obligation cannot be rejected. Summary 2: This case is to be examined from this point of view. The travel order issued by the chairperson of the prefectural assembly to its members is illegal, however, given the facts of 2(1) and (2) of above No.1 and other facts concerning the history of the travel order legally decided by the original instance, it cannot be concluded that the travel order issued by the chairperson of the prefectural assembly was excessively unreasonable, and consequently, that there were some defects that could not be overlooked from the viewpoint of securing appropriateness of budget execution. Therefore, the governor had an obligation to take the required financial and accounting measures based on the travel order issued by the chairperson of the prefectural assembly. In the end, the act of undertaking to provide travel expenses and issuing an expenditure order for travel expenses incurred by assembly members by the appellant C, who had the authority of exclusive decision for the governor in accordance with Article 12 of the final decision regulation and Appendix 3, cannot be regarded as illegal for contravening said obligations under financial and accounting regulations. 2 Concerning the liability for damage to be born by a staff member who has the authority to undertake to provide travel expenses and issue an expenditure order for an ordinary local public entity, only when the staff member conducted the act by violating regulations with intention or gross negligence, shall the staff member bear the liability (Article 243-2(1) and (9)). In order to decide that the appellant C bears the liability for damage for the prefecture on the grounds that he undertook to provide travel expenses and issued an expenditure order for travel expenses incurred by assembly members and staff members of the secretariat of the assembly, the intention or gross negligence of the appellant must be determined. However, the original instance approved the liability for damage of the appellant without determining the intention or gross negligence on his part, and it is to be concluded that Article 243-2 of the law was mistakenly interpreted and applied. In addition to the facts mentioned in above 1 , taking other facts into consideration which were legally determined by the original instance, for example, the appellant C, as an assistant staff member entrusted with the exclusive decision, undertook to provide travel expenses and issued an expenditure order based on the assembly's decision of sending assembly members to the Baseball Tournament of the case, it cannot be concluded that there was intention or gross negligence in performing the above undertaking to provide travel expenses and issuance of an expenditure order by the appellant. The given line of argument can be accepted because it claims this point. 3 From all of the above, in the decision of the original instance that approved the liability for damage born by the appellant C, apparent violation of laws can be seen which have affected the judgment, therefore, this part of the original judgment shall be quashed. Based on the above mentioned, there is no reason for the claim of the appellee against the appellant C, therefore, the part, which approved the claim in the decision of the first instance, shall be revoked and the claim shall be dismissed. (3) Concerning the claim against the appellant D It is provided in the stipulations of the regulations for the secretariat of the Tokushima prefectural assembly (the regulations for Tokushima prefectural assembly No.1, before the amendment by the regulations for Tokushima prefectural assembly No3. in 2001) that the director-general of the assembly is allowed to decide exclusively on the matter concerning the official trip to other prefectures by the staff members of the secretariat (Article 12(i)), and during his absence, the deputy director-general of the secretariat of the assembly shall decide on behalf of him (Article 8). Based on the above facts No.1, the appellant C, the deputy director-general of the secretariat of the assembly, issued a travel order to 9 staff members of the secretariat including the appellant D after making a decision on behalf of the Director-General, it can be regarded that he made the business trip in line with an order of duty. In accordance with the stipulations of the Local Public Service Law, staff members of local public entities shall follow faithfully the order of duty issued by their superiors (Article 32), that is, it can be understood that a staff member has the obligation to follow an order of duty from his superior so long as it contains no serious and apparent defects. Under the above duty relations, when a staff member of a local public entity makes a trip in accordance with a travel order, an order of duty, so long as there are no serious and apparent defects in the travel order, the staff member is allowed to obtain the travel expenses and it is not regarded as unjust enrichment. Summary 3: This case is to be examined from this point of view. Given the facts determined legally by the original instance, the travel order to the staff members of the secretariat of the assembly was issued as a result of a decision made by the assembly to send its members to the Baseball Tournament of the case, in order to have the staff members of the secretariat of the assembly attend to the assembly members and carrying out duties such as communication and coordination with the headquarters of the executive committee, transportation and maintenance of equipment, taking records and other subordinate jobs, therefore, it cannot be concluded that there was a serious and apparent defect in the job order. In the end, it is to be concluded that the travel expenses paid to the appellant D, who made a trip in accordance with the order, is not to be regarded as unjust enrichment. This line of argument can be accepted because it claims this point. From all of the above, in the decision of the original instance that approved the liability for damage born by the appellant D, apparent violation of laws can be seen which have affected the judgment, therefore, the said part of the original judgment shall be quashed. Based on the above mentioned, there is no reason for the claim of return of the unjust enrichment by the appellee against the appellant D, therefore, the part, which approved the claim of return of the unjust enrichment in the decision of the first instance, shall be revoked and the claim by the appellee against the appellant D shall be dismissed. In the end, the judgment was rendered in the form of the main text by the unanimous consent of the Justices.
Presiding Judge	Justice FUKUDA Hiroshi Justice KITAGAWA Hiroharu Justice KAMEYAMA Tsugio Justice KAJITANI Gen Justice TAKII Shigeo

(This translation is provisional and subject to revision.)