2002(Gyo-Hi)No. 292

Date of the judgment	2004.11.25
Case number	2002(Gyo-Hi)No. 292
Reporter	Minshu Vol. 58, No. 8
Title	Judgment concerning the degree of specificity of object to be audited in a citizens' petition for audit
Case name	Case to seek damages
Result	Judgment of the First Petty Bench, quashed and remanded
Court of the Second Instance	Fukuoka High Court, Judgment of July 18, 2000
Summary of the judgment	1. When making a citizens' petition for audit, it is necessary to indicate the act or omission in financial accounting to be audited individually and concretely enough to distinguish the act or omission from other matters; however, it would suffice that the act or omission is indicated to the degree that would enable the audit commissioner to recognize, by comprehensively taking into consideration the statements in the written petition for audit and corroborating documents attached thereto as well as other references submitted by the petitioner, that the object to be audited is a specific act of omission in financial accounting, and this shall also apply to cases where petition for audit is made regarding two or more acts or omissions. 2. Given the fact that the prefectural government conducted inspection on the appropriateness of individual disbursements of expenses on specific items for two or more fiscal years and disclosed the total amount of inappropriate disbursements, the citizens' petition for audit made on the ground that such inappropriate disbursements are illegal disbursements of public money, shall not be deemed to lack specificity of object to be audited, even if the details on the disbursements to be audited, such as the departments and divisions of the prefectural government that made the disbursements, the date of disbursements, the amount of public money disbursed, and the parties that received the money disbursed, are not indicated individually and correctly.
References	(Concerning 1 and 2) Article 242(1) of the Local Autonomy Law and Article 242-2(1) of the Local Autonomy Law (before amendment by Law No. 4 of 2002) Article 242(1) of the Local Autonomy Law (Petition for Audit) If any inhabitant of an ordinary local public body has found that the head or any commission or commissioner or any officer of the ordinary local public body illegally or improperly disbursed public money, obtained, administered or disposed of public property, concluded or performed contracts or incurred obligations or burdens or is anticipated with high probability to do so, or illegally or improperly omitted levying or collecting public money or administer public property (hereinafter referred to as "omission"), the inhabitant may make petition to the audit commissioner(s), with corroborating documents, for audit thereon to prevent or correct such act or omission, or to take necessary measures to indemnify the losses incurred by the ordinary local public body on account of such act or omission. Article 242-2(1) 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 (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: (1) a claim for injunction against the whole or part of the act of such executive organs or officers; (2) a claim for revocation or invalidation of the act when it was committed as an administrative measure; (3) a claim for declaration of illegality of the omission of such executive organs or officers; (4) a claim, which is made on behalf of the local public body, for damages or restitution of unjust enrichment against officers, or 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.
Main text of the judgment	The judgment of the second instance shall be quashed with respect to the part that dismissed the koso appeal filed by the jokoku appellants. This case shall be remanded to the Fukuoka High Court.
Reasons	Concerning Grounds 1 to 3 for the petition for accepting the jokoku appeal argued by the attorneys for jokoku appeal MIYAHARA Sadaki, et al. 1. This is a case brought by the jokoku appellants who are inhabitants of Saga Prefecture to seek, by subrogation for the Saga Prefectural Government (hereinafter refereed to as the "Prefectural Government"), damages from the jokoku appellee IMOTO Isamu, then prefectural governor, under the provisions of Article 242-2(1)(iv) of the Local Autonomy Law (before amendment by Law No. 4 of 2002; hereinafter referred to as the "Law"), on the ground that part of disbursements made by the Prefectural Government to the photocopier leasing companies as lease fees for photocopier in FY1993, FY1994, FY1996, and FY1997 were illegally padded, and also seek declaration of illegality of the omission of the jokoku appellant prefectural governor to exercise the claim to seek restoration of unjust enrichment from the photocopier leasing companies and the claim to seek damages from officers of the prefectural government involved in the illegal disbursements. 2. The outline of the facts legally determined by the judgment of the second instance is as follows. (1) The Prefectural Government concluded photocopier lease contracts with two photocopier leasing companies and paid lease fees for photocopiers to the companies depending on the number of copies produced in individual departments and divisions of the prefectural government. The total amount of lease fees for photocopiers used in the government office as a whole from FY1993 until FY1997 was 1,951,763,000 yen. (2) The Prefectural Government conducted inspection on the suspicion of improper disbursements of lease fees for photocopiers. On June 16, 1998, the government disclosed that in the amount of lease fees disbursed in FY1995, 224,124,000 yen had been unofficially and inappropriately disbursed. On September 4, 1998, the government also disclosed that in the amount of lease fees disbursed from FY1993 until FY1997, 644,336,000 yen had been unofficially and inappropriately disbursed. In the inspection, the government examined the appropriateness of individual disbursements of lease fees for photocopiers during the period mentioned above. (3) On October 15, 1998, the jokoku appellants made petition to the audit commissioner for audit on the disbursements of lease fees for photocopiers used in the government office as a whole in FY1993, FY1994, FY1996, and FY1997 (hereinafter referred to as the "Petition"). The written petition for audit submitted for the Petition (hereinafter referred to as the "Written Petition") stated the summary of the petition as follows. "On September 4, the Saga Prefectural Government disclosed the results of the internal inspection on disbursements of lease fees for photocopiers used in the government office as a whole from FY1993 until FY1997, which reveals that the total amount of padding of lease fees disbursed for fictitious use of photocopiers in the past five years reaches 644,336,000 yen. In this amount, the amount of padding of lease fees disbursed in FY1995 was 224,124,000 yen, and the total amount of padding of lease fees disbursed in the past five years excluding FY1995 was 420,212,000 yen. [...] Therefore, we demand that the audit commissioner immediately have the Saga prefectural governor Isamu Imoto compensate for 420,212,000 yen that was illegally disbursed as lease fees for fictitious use of photocopiers in the government office as a whole during the period from FY1993 to FY1997 except for FY1995, take necessary measures to indemnify the losses incurred by the Saga Prefectural Government on account of such illegal disbursements, and take other measures." Newspaper articles on this case were attached to the Written Petition as corroborating documents. (4) As of December 14, 1998, the audit commissioner rejected the Petition for the reason that the Petition lacked specificity to be audited. 3. According to the facts mentioned above, the court of the second instance judged as follows. (1) The Petition was made comprehensively for audit on various disbursements made by several departments and divisions in the Prefectural Government. There are no special reasons to construe that it is reasonable to regard these disbursements as one combined disbursement when judging whether or not they were illegal or inappropriate. Therefore, the petitioner should indicate the disbursements to be audited individually and concretely enough to distinguish them from other disbursements. (2) When making a petition, it is necessary to individually and correctly indicate the details on the disbursements to be audited, such as the departments and divisions in the prefectural government that made the disbursements, the date of disbursements, the amount of public money disbursed, and the parties that received the money disbursed. However, the Petition cannot be deemed to individually and correctly indicate the details on the disbursements to be audited even if the newspaper articles attached to the Written Petition were taken into consideration, and therefore the Petition lacks specificity of object to be audited. 4. However, the judgment of the second instance cannot be accepted with respect to the part mentioned in (2) above, on the following ground. When making citizens' petition for audit, it is necessary to indicate the act or omission in financial accounting to be audited individually and concretely enough to distinguish the act or omission from other matters. However, it would suffice that the act or omission is indicated to the degree that would enable the audit commissioner to recognize, by comprehensively taking into consideration the statements in the written petition for audit and corroborating documents attached thereto as well as other references submitted by the petitioner, that the object to be audited is a specific act of omission in financial accounting, and it is not necessary to indicate the act or omission individually and concretely beyond such degree. This reasoning also applies to cases where petition for audit is made regarding two or more acts or omissions. It is not in conflict with the purport of 1998(Gyo-Tsu)No. 68, judgment of the Third Petty Bench of the Supreme Court of June 5, 1990, Minshu Vol. 44, No. 4, at 719. According to the facts mentioned above, the Petition was made for necessary measures to indemnify losses incurred by the Prefectural Government on the ground that in the total amount of lease fees disbursed for photocopiers used in the government office as a whole in FY1993, FY1994 FY1996, and FY1997, 420,212,000 yen was judged, in the inspection conducted by the Prefectural Government, to have been inappropriately disbursed, and therefore it is an illegal disbursement of public money. In the inspection, the Prefectural Government examined the appropriateness of individual disbursements of lease fees for photocopiers during the period mentioned above. Therefore, when the Petition was made, the disbursements to be audited were indicated to the degree that would enable the audit commissioner to specifically recognize them as the object to be audited, even though the details on the disbursements, such as the departments and divisions in the prefectural government that made the disbursements, the date of disbursements, the amount of public money disbursed, and the parties that received the money disbursed, were not indicated individually and correctly. In consequence, the Petition did not lack specificity of object to be audited. 5. For this reason, the judgment of the second instance, which regarded the Petition as lacking specificity of object to be audited, contains an apparent violation of laws that has affected the judgment. The jokoku appellants' argument is well-grounded, and the judgment of the second instance shall inevitably be quashed with respect to the part that dismissed the koso appeal filed by the jokoku appellants. For further examination on whether or not the time limit for making petition under Article 242(2) of the Law has elapsed for the Petition and whether or not there are reasonable grounds as set forth in the proviso of the said paragraph, this case shall be remanded to the court of the second instance. Therefore, the judgment was rendered in the form of the main text by the unanimous consent of the Justices.
Presiding Judge	Justice SHIMADA Niro Justice YOKOO Kazuko Justice KAINAKA Tatsuo Justice IZUMI Tokuji Justice SAIGUCHI Chiharu

(This translation is provisional and subject to revision.)