Date of the judgment
 2004.04.23 
Case number
 2000(Gyo-Hi)No. 246 
Reporter
 Minshu Vol. 58, No. 4 
Title
 Judgment concerning the unauthorized occupancy of a road and the acquisition by the road administrator of the claim for the amount equivalent to the occupancy fee from the occupant 
Case name
 Case to seek declaration of illegality of omission 
Result
 Judgment of the Second Petty Bench, dismissed 
Court of the Second Instance
 Tokyo High Court, Judgment of March 31, 2000 
Summary of the judgment
 1. In the case of unauthorized occupancy of a road, the road administrator shall acquire the right to seek damages or restitution of unjust enrichment of the amount equivalent to the occupancy fee from the occupant.
2. Given the facts that about 36,000 vending machines selling cigarettes, etc. were placed in the manner that they protruded into Tokyo Metropolitan Government roads without permission for road occupancy, it would take considerable labor and expenses to identify the obligator and calculate the amount of claim for each unit but the amount equivalent for the occupancy fee per unit would be small, the Tokyo Metropolitan Government considered that this situation should be fundamentally corrected by removing these vending machines rather than collecting compensation for occupancy, and the manufacturers that had placed these vending machines to sell their products removed the machines at their own expense after receiving instruction of the Tokyo Metropolitan Government, it is not illegal for the Tokyo Metropolitan Government not to exercise the right to seek, from the manufacturers, damages or restitution of unjust enrichment of the amount equivalent to the fee for occupancy of Tokyo Metropolitan Government roads.		 
References
 (Concerning 1) Article 32, para. 1 of the Road Law (before amendment by Law No. 106 of 2000), Article 39, para. 1 of the Road Law (before amendment by Law No. 87 of 1999), Article 19-4, para. 1 of the Road Law Enforcement Order (before amendment by Cabinet Order No. 352 of 1999), and Articles 703 and 709 of the Civil Code

Article 32, para. 1 of the Road Law (before amendment by Law No. 106 of 2000)
(Permission for road occupancy)
Anyone who intends to establish any of the following works, objects, or facilities on roads, thereby continuously using roads, shall obtain permission from a road administrator:
(1) electric poles, electric wires, transformer towers, postboxes for deposit of mail, public telephone boxes, advertising towers, and other similar works;
(2) water pipes, sewage pipes, gas pipes, and other similar objects;
(3) railroad tracks, rails, and other similar facilities;
(4) arcades, snowsheds, and other similar facilities;
(5) underground shopping complexes, basements, passageways, and other similar facilities;
(6) street stalls, merchandise storage spaces, and other similar facilities;
(7) Except for those set forth in the preceding sub-paragraphs, works, objects, or facilities that would be obstacles to road structure or traffic as prescribed by cabinet order.

Article 39, para. 1 of the Road Law before amendment by Law No. 87 of 1999
(Collection of occupancy fee)
The road administrator (the national government for national roads within the designated zones, or the prefectural government administered by the prefectural governor for national roads outside the designated zones; hereinafter the same) may collect a fee for road occupancy, unless the occupancy is related to the projects carried out by the national government as prescribed by cabinet order or the projects carried out by local governments other than those carried out by public corporations as prescribed in Article 6 of the Local Finance Law (Law No. 109 of 1948).

Article 19-4, para. 1 of the Road Law Enforcement Order before amendment by Cabinet Order No. 352 of 1999
(Attribution of revenue from occupancy fee)
Occupancy fee under the provisions of Article 39 of the Law shall be revenue belonging to the national government for national roads within the designated zones, to the government of the prefecture, designated municipality, or non-designated municipality administered by the prefectural governor, mayor of the designated city, or mayor of the non-designated city that is the road administrator of the road, for national roads outside the designated zones, or to the government of the prefecture or municipality that is the administrator of the road, for prefectural or municipal roads.

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.

Article 709 of the Civil Code
A person who intentionally or negligently violates the right of another is bound to make compensation for damage arising therefrom.

(Concerning 2) Article 240, para. 3 of the Local Autonomy Law, Article 242-2, para. 1, sub-para. 4 of the Local Autonomy Law before amendment by Law No. 4 of 2002, Article 171-5, sub-para. 3 of the Local Autonomy Law Enforcement Order, and Article 2 of the Ordinance of Tokyo Metropolitan Government on Collection of Road Occupancy Fee, etc. (Tokyo Metropolitan Government Ordinance No. 100 of 1952)

Article 240, para. 3 of the Local Autonomy Law
(Claim)
With regard to an ordinary local public body's claims, the head of the ordinary local public body may suspend collection of them, postpone their term of payment or exempt obligations under them, as provided by cabinet order.

Article 242-2, para. 1, sub-para. 4 of the Local Autonomy Law before amendment by Law No. 4 of 2002
(Citizen suit)
1. Any inhabitant of an ordinary local public body who has made petition under Paragraph 1 of the preceding Article may, by initiating litigation, claim the judicial remedies set forth in the following Subparagraphs for the illegal act or omission for which the claim under Paragraph 1 of the same Article was made, if dissatisfied with the results of the audit or the recommendation of the audit commissioner(s) under Paragraph 3 of the same Article, or with the measures taken by the assembly, the head or other executive organs of the local public body or their officers under Paragraph 7 of the same Article, or if the audit commissioner(s) fail to audit or make recommendation under Paragraph 3 of the same Article within the period specified in Paragraph 4 of the same Article, or the assembly, the head or other executive organs of the local public body or their officers fail to take measures under Paragraph 7 of the same Article. However, a claim set forth in Subparagraph (1) may not be made unless such act will be likely to bring about irrecoverable damages to the ordinary local public body; and a claim for restitution of unjust enrichment from an officer included in Subparagraph (4) shall be allowed only to the extent such gains are still retained by the officer:
(4) a claim, which is made on behalf of the local public body, for the damages or for the restitution of unjust enrichment against officers, or for the declaration of non-existence of legal rights, for damages, for the restitution of unjust enrichment, for the restoration of the status quo ante or for an injunction of nuisance against persons responsible for the act or omission.

Article 171-5, sub-para. 3 of the Local Autonomy Law Enforcement Order
(Suspension of collection)
With regard to its claims (excluding those to be compulsorily collected) that have yet to be paid completely beyond a certain period after the term of payment, where the head of an ordinary local public body considers it extremely difficult or inappropriate to have the obligator pay the claims, the head may choose not to take measures for security or enforcement of the claims afterwards, if:
(3) the amount of claims is small and seems insufficient to cover the costs for enforcement of the claims.

Article 2 of the Ordinance of Tokyo Metropolitan Government on Collection of Road Occupancy Fee, etc. (Tokyo Metropolitan Government Ordinance No. 100 of 1952)
(Amount of occupancy fee)
The amount of occupancy fee shall be calculated according to the Attached Table.		 
Main text of the judgment
 The jokoku appeal shall be dismissed.
The jokoku appellants shall bear the whole cost of the jokoku appeal.		 
Reasons
 Concerning the grounds for the petition for accepting the jokoku appeal argued by the attorneys for jokoku appeal ASANO Susumu, ISAYAMA Yoshio, YAMAMOTO Masaaki, SAIGUSA Motoyuki, and HARA Katsumi (except for those excluded)
1. This is a case brought as a citizen suit by the jokoku appellants who are inhabitants of Tokyo to seek, by subrogation for the Tokyo Metropolitan Government, damages or restitution of unjust enrichment from the jokoku appellees under the provisions of Article 242-2, para. 1, sub-para. 4 of the Local Autonomy Law before amendment by Law No. 4 of 2002; hereinafter the same, on the ground that the jokoku appellees, who are manufacturers of the products sold in vending machines such as cigarettes, nonalcoholic drinks, etc. (hereinafter referred to as the "Manufacturers"), placed vending machines in a manner that the they, without authority, protruded into roads administered by the Tokyo Metropolitan Government, thereby causing damage of the amount equivalent to the occupancy fee to the Tokyo Metropolitan Government.

2. The outline of the facts legally determined by the judgment of the second instance is as follows.
(1) The Shufuren (Japan Housewives' Association), Japan Association on Tobacco and Health, Japan Alcohol Problem Liaison Council, and other citizens' groups (hereinafter referred to as the "Shufuren, etc.") considered that vending machines placed in the manner that they protruded into roads were obstacles to traffic and vending machines selling alcohol and cigarettes were undesirable from the perspective of preventing minors from drinking alcohol or smoking cigarettes, and decided to carry out the campaign for the removal of the vending machines placed in the manner that they protruded into Tokyo Metropolitan Government roads (hereinafter referred to as the "protruding vending machines"). Based on the results of the surveys conducted from August to September 1990, the Shufuren, etc., on October 4, submitted their opinion that require to remove the protruding vending machines to the Tokyo Metropolitan Government and other administrative authorities concerned, and manufacturers of cigarettes and alcohol drinks, etc.. They also requested the Manufacturers including the jokoku appellees to remove the protruding vending machines. Thus, the Shufuren, etc. promoted the campaign for the removal of the protruding vending machines.
(2) Having heard the opinion of the Shufuren, etc. mentioned above, at the end of October 1990, the Tokyo Metropolitan Government requested the trade associations concerned with vending machines to take measures to correct the situation by transferring or removing the protruding vending machines.
From January to December 1991, the Tokyo Metropolitan Government conducted a sample survey on protruding vending machines with regard to roads of total length of about 604km, and on June 1992, found that 1,539 vending machines protruded into roads. Based on this result, the Tokyo Metropolitan Government gave administrative guidance to the Manufacturers and the trade associations to which they belonged as well as the trade associations concerned with vending machines, and also requested the Manufacturers to identify the actual conditions of protruding vending machines and submit a corrective plan in writing to the Tokyo Metropolitan Government by the end of March 1993. On May 14, 1993, the Tokyo Metropolitan Government prepared a report regarding the results of actual conditions surveys and corrective plans submitted by the Manufacturers, and after concluding that it would be difficult and take considerable labor and expenses to identify the party responsible for each protruding vending machine, the Government also requested further cooperation from the associations concerned and the Manufactures and gave guidance to them to promote corrective measures for the removal of protruding vending machines.
From October 20 to December 10, 1993, the Tokyo Metropolitan Government repeatedly gave specific and explicit guidance to the Manufactures and the associations to which they belonged as well as retailers, etc. to immediately take corrective measures for the removal of protruding vending machines, including instruction on the removal methods, cost sharing, time limits, cooperation from businesses concerned, etc.
(3) Having heard the opinion of the Shufuren, etc. mentioned above and received guidance from the associations to which they belonged as well as the Tokyo Metropolitan Government and other administrative authorities concerned, the jokoku appellees made efforts to correct the situation by removing protruding vending machines, but at the beginning, their efforts did not progress very smoothly because of many problems such as ambiguous boundaries between public roads and private property, inequality in treatment between protruding vending machines and other protruding objects, the sharing of costs for corrective measures, and the handling of cases where corrective measures were impossible, and also due to resistance from retailers and consumers about the removal on the grounds of the convenience and usability of vending machines. However, the Tokyo Metropolitan Government did not change their initial policy and continued with efforts for achieving the goal in cooperation with the jokoku appellees. Following guidance for correction from the government, the jokoku appellees also make extremely active and consistent efforts by striving to persuade retailers, etc. and bearing a considerable portion of the costs for corrective measures. As a result, the vending machines that were noted by the jokoku appellants in this case and indicated in 1 and 3 to 5 of the list of vending machines attached to the judgment of the second instance (hereinafter referred to as the "List") were removed by the end of November 1993, and almost all of the protruding vending machines in Tokyo, about 36,000 at that time, were removed by the beginning of 1994.
(4) Jokoku Appellant Company A, Jokoku Appellant B, and Jokoku Appellant C placed the vending machines indicated in 1 on the List, those indicated in 3 and 4 on the List, and those indicated in 5 on the List respectively by March 1993 at the latest, in a manner that the machines protruded into Tokyo Metropolitan Government roads without permission for road occupancy.
Subsequently, Jokoku Appellant Company A removed the vending machines indicated in 1 on the List from Tokyo Metropolitan Government roads on October 20, 1993. Jokoku Appellant Company B removed the vending machines indicated in 3 on the List and those indicated in 4 on the List from Tokyo Metropolitan Government roads on November 12 and November 16 respectively. Jokoku Appellant Company C removed the vending machines indicated in 5 on the List from Tokyo Metropolitan Government roads on November 12.
(5) The jokoku appellants seek damages or restitution of unjust enrichment in this case on the ground of the unauthorized occupancy of Tokyo Metropolitan Government roads from March 23 or April 1, 1993, to the dates of removal mentioned above, and the amount of such damages or unjust enrichment is calculated based on the amount equivalent to the occupancy fee per square meter at 20,200 yen a year or about 1,683 yen a month, assuming that the vending machines concerned should be regarded as advertising towers set forth in Article 32, para.1, sub-para.1 of the Road Law and the Attached Table of the Ordinance of Tokyo Metropolitan Government on Collection of Road Occupancy Fee, etc. (Tokyo Metropolitan Government Ordinance No. 100 of 1952) and the locations where they were placed were Class 1 Land in Special Wards indicated in the Attached Table.

3. Article 32, para. 1 of the Road Law provides that anyone who intends to establish advertising towers or other similar works on roads, thereby continuously using roads, shall obtain permission from a road administrator. Article 39, para. 1 of the said law also provides that the road administrator may collect a fee for road occupancy. The occupancy fee will be treated as revenue belonging to the government of the prefecture that is the road administrator for the relevant prefectural roads (Article 19-4, para. 1 of the Road Law Enforcement Order). Thus, the road administrator may collect a fee for road occupancy as its revenue, and therefore in the case of unauthorized occupancy of roads, the road administrator should be deemed to acquire the right to seek damages or restitution of unjust enrichment of the amount equivalent to the occupancy fee from the occupant.
In this case, as the jokoku appellees placed the vending machines indicated in 1 and 3 to 5 on the List in a manner that they protruded into Tokyo Metropolitan Government roads, thereby occupying, without any authority for occupancy, part of roads into which the machines protruded from the dates of placement until the dates of removal of the machines, the Tokyo Metropolitan Government should be deemed to have acquired the right to seek damages or restitution of unjust enrichment of the amount equivalent to the occupancy fee from the jokoku appellees due to such occupancy of roads.

4. According to the provisions of Article 240 of the Local Autonomy Law and Articles 171 to 171-7 of the Local Autonomy Law Enforcement Order concerning the management of claims owned by local public bodies, it is unallowable for a local public body to, without no justifiable reason, neglect to enforce or exempt claims the existence of which is objectively ascertainable, and whether or not to exercise the claims is, in principle, not left to the discretion of the head of the local public body. With regard to claims that have yet to be paid completely beyond a certain period after the term of payment, however, it is provided that, where the head of a local public body considers it extremely difficult or inappropriate to have the obligator pay the claims, the head of a local public body may choose not to take measures for security or enforcement of the claims afterwards, if "the amount of claims is small and seems insufficient to cover the costs for enforcement of the claims" (Article 171-5, para. 3 of the Local Autonomy Law Enforcement Order).
According to the facts in this case mentioned above, the amount equivalent to the occupancy fee, when calculated as argued by the jokoku appellants by assuming that the area of occupancy per unit is one square meter, is as small as about 1,683 yen a month, whereas as many as about 36,000 protruding vending machines existed in Tokyo at that time. Therefore, it cannot be deemed to be illegal that the Tokyo Metropolitan Government regarded this case as falling under the situation where "the amount of claims is small and seems insufficient to cover the costs for enforcement of the claims" on the ground that consideration should be given to all protruding vending machines and it would take considerable labor and expenses to identify the obligator and calculate the amount of claim for each unit. Furthermore, the priority task regarding protruding vending machines was to remove them for the purpose of correcting an undesirable situation in which the machines would continue to be obstacles to traffic if no measures were taken. Therefore, it is sufficiently understandable that the Tokyo Metropolitan Government chose to correct this situation fundamentally by removing these vending machines rather than collecting compensation for occupancy. Finally, the goal of removing producing vending machines was accomplished because the Manufacturers cooperated with the Tokyo Metropolitan Government and bore the costs for removal. Under such circumstances, it cannot be deemed to be illegal that the Tokyo Metropolitan Government judged it extremely inappropriate to further collect money equivalent to the occupancy fee from the Manufacturers.
Consequently, given the facts mentioned above, it cannot be deemed to be illegal that the Tokyo Metropolitan Government did not exercise the right to seek damages or restitution of unjust enrichment from the jokoku appellees. The judgment of the second instance that goes along with this reasoning can be accepted as justifiable, and the jokoku appellants' argument cannot be accepted. The jokoku appeal for other claims shall be dismissed as the grounds for the petition for accepting the jokoku appeal for such claims were rejected by the decision of acceptance of the jokoku appeal.

Therefore, 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 TAKII Shigeo
(This translation is provisional and subject to revision.)