Date of the judgment
2007.11.01
Case number
2005 (Ju) No. 1977
Reporter
Minshu Vol. 61, No. 8
Title
Judgment given in a case where the court found that where the government official in charge, based on an erroneous construction of the Act on Medical Care for Atomic Bomb Survivors and the Act on Special Measures for Atomic Bomb Survivors, prepared and issued a directive, which provides that an atomic bomb survivor, upon moving his/her place of residence outside Japan, shall be treated as having forfeited the right to receive health management allowance, etc., and then continued to treat such atomic bomb survivors as provided by the directive, the official's act should be held as being illegal under Article 1, para.1 of the Act on State Liability for Compensation, and should be held as being negligent for committing such act
Case name
Case to seek damages
Result
Judgment of the First Petty Bench, dismissed
Court of the Second Instance
Hiroshima High Court, Judgment of January 19, 2005
Summary of the judgment
Where the government official in charge, based on an erroneous construction of the Act on Medical Care for Atomic Bomb Survivors and the Act on Special Measures for Atomic Bomb Survivors, prepared and issued a directive (Directive Ei-Hatsu No. 402 of July 22, 1974, issued by the Director-General of the Public Health Bureau of the Ministry of Health and Welfare to the prefectural governors and the mayors of Hiroshima City and Nagasaki City), which provides that when an atomic bomb survivor who has received an atomic bomb survivor's healthcare certificate under the Act on Medical Care for Atomic Bomb Survivors moves his/her place of residence outside Japan, the Act on Special Measures for Atomic Bomb Survivors shall not apply to him/her, and he/she shall be treated as having forfeited the right to receive health management allowance, etc. under the said Act, and subsequently, even after the Act on Relief for Atomic Bomb Survivors was enacted in a manner so as to integrate the former two Acts, the official in charge continued to treat such atomic bomb survivors as provided by the directive until March 2003, the official's act should be held as being in breach of the duty of care usually required in the course of performing his/her official duties and therefore illegal under Article 1, para.1 of the Act on State Liability for Compensation, and the official should be held as being negligent for committing such act, taking into account the relevant factual circumstances shown in (1) and (2) below:
(1) The government official in charge initially implemented the Act on Medical Care for Atomic Bomb Survivors and the Act on Special Measures for Atomic Bomb Survivors based on the construction that these Acts shall apply only to atomic bomb survivors having a place of residence or a current residence in Japan and shall not apply to atomic bomb survivors residing outside Japan at all. Subsequently, however, by the time of preparing and issuing the said directive, the official had reconsidered whether or not the conventional construction and implementation of the said Acts could be justified as an objective construction of the Acts, and as a result, had become aware that the conventional construction and implementation lacked legal grounds and therefore abandoned them, following a juridical decision holding that an atomic bomb survivor shall not be required to have a place of residence or a current residence in Japan as a requirement of eligibility for application of the Act on Medical Care for Atomic Bomb Survivors. As a result, by that time, the official had adopted a new practice in which the said two Acts shall also apply to atomic bomb survivors residing overseas who satisfy certain conditions, and they shall be given recognition of eligibility for payment of health management allowance, etc. if they satisfy the requirements for receiving payment.
(2) If the government official in charge, on the occasion of said reconsideration, fulfilled the duty of care usually required in the course of performing his/her official duties, he/she should have necessarily recognized that a question should inevitably be raised as to the justifiability of the construction whereby an atomic bomb survivor shall be treated as having forfeited the right to receive health management allowance, etc. for a reason that was not explicitly stipulated by law -- i.e. on the ground that he/she moved his/her place of residence outside Japan--, by giving consideration to the consistency with other systems for payment of allowance, etc. for which, if having a domicile or residence in Japan is a requirement for receiving payment, it is, in general, explicitly stipulated in the governing statutes. However, the official in charge prepared and issued the said directive based on the said construction, and thereafter maintained the practice according to the directive in which atomic bomb survivors overseas who had obtained the right to receive health management allowance, etc. are to be treated as forfeiting the right upon their departure from Japan.
(There is a dissenting opinion.)
References
Article 1, para.1 of the Act on State Liability for Compensation; Article 2 and Article 3 of the Act on Medical Care for Atomic Bomb Survivors; Article 5 of the Act on Special Measures for Atomic Bomb Survivors; and Article 1, Article 2, and Article 27 of the Act on Relief for Atomic Bomb Survivors

Article 1, para.1 of the Act on State Liability for Compensation
(Liability for Damage Caused by a Public Officer in a Position to Execute the Public Authority, and Right to Obtain Reimbursement from Such Public Officer)
(1) When a public officer who is in a position to exercise the public authority of the State or of a public entity has, in the course of performing his/her duties, illegally caused damage to another person either intentionally or negligently, the State or the public entity concerned shall be liable to compensate such damage.

Article 2 of the Act on Medical Care for Atomic Bomb Survivors
(Definition)
The term "atomic bomb survivor" as used in this Act shall mean a person who falls under any of the following items and has received an atomic bomb survivor's healthcare certificate:
(i) A person who was, at the time of the atomic bombing, in the area of what was then Hiroshima City or Nagasaki City or other areas adjacent to these city areas specified by a Cabinet Order
(ii) A person who was, within a period from the time of the atomic bombing specified by a Cabinet Order, in any of the areas specified by a Cabinet Order among areas prescribed in the preceding item
(iii) In addition to persons listed in the preceding two items, a person who was, at the time of the atomic bombing or thereafter, under circumstances in which the person's body was influenced by radiation from the atomic bombing
(iv) A person who was an unborn child of any of the persons listed in the preceding three items at the time prescribed in the respective items

Article 3 of the Act on Medical Care for Atomic Bomb Survivors
(Atomic Bomb Survivor's Healthcare Certificate)
(1) A person who wishes to receive an atomic bomb survivor's healthcare certificate shall apply to the governor of the prefecture in which the person has a place of residence (or a current residence if the person has no place of residence; the same shall apply hereinafter) (or to the mayor of Hiroshima City or Nagasaki City if the person has a place of residence in either city; the same shall apply hereinafter).
(2) The prefectural governor shall, when he/she finds that the applicant falls under any of the items of the preceding Article as a result of the examination based on the application filed under the preceding paragraph, issue an atomic bomb survivor's healthcare certificate to the applicant.
(3) Necessary matters concerning an atomic bomb survivor's healthcare certificate shall be specified by a Cabinet Order.

Article 5 of the Act on Special Measures for Atomic Bomb Survivors
(Payment of Health Management Allowance)
(1) The prefectural governor shall pay health management allowance to a person who is an atomic bomb survivor and suffers from a disease with impaired hematopoiesis, impaired liver function or other impairments specified by an Ordinance of the Ministry of Health and Welfare (excluding those that are obviously not caused by the influence of radiation from the atomic bombing); provided, however, that this shall not apply where the person receives special medical care allowance, special allowance, or atomic bomb microcephaly allowance.
(2) The person prescribed in the preceding paragraph shall, when he/she intends to receive health management allowance, obtain recognition by the prefectural governor that he/she satisfies the requirements prescribed in the said paragraph.
(3) Upon giving recognition under the preceding paragraph, the prefectural governor shall also specify a period during which the disease is expected to last. In this case, such period shall not exceed the period specified by the Minister of Health and Welfare for each type of disease prescribed in para.1.
(4) Health management allowance shall be paid on a monthly basis, and the amount thereof shall be 33,300 yen per month.
(5) Payment of health management allowance shall commence in the month following the month that contains the day on which the person who has obtained recognition under para.2 applied for recognition under the said paragraph, and end in the month that contains the day on which the period set forth under para.3 for the person elapses from the date of application (in the case where the person ceases to satisfy the requirements prescribed in para.1 before the period elapses, the day on which the person ceases to satisfy the requirements).

Article 1 of the Act on Relief for Atomic Bomb Survivors
(Atomic Bomb Survivor)
The term "atomic bomb survivor" as used in this Act shall mean a person who falls under any of the following items and has received an atomic bomb survivor's healthcare certificate:
(i) A person who was, at the time of the atomic bombing, in the area of what was then Hiroshima City or Nagasaki City or other areas adjacent to these city areas specified by a Cabinet Order
(ii) A person who was, within a period from the time of the atomic bombing specified by a Cabinet Order, in any of the areas specified by a Cabinet Order among areas prescribed in the preceding item
(iii) In addition to persons listed in the preceding two items, a person who was, at the time of the atomic bombing or thereafter, under circumstances in which the person's body was influenced by radiation from the atomic bombing
(iv) A person who was an unborn child of any of the persons listed in the preceding three items at the time prescribed in the respective items

Article 2 of the Act on Relief for Atomic Bomb Survivors
(Atomic Bomb Survivor's Healthcare Certificate)
(1) A person who wishes to receive an atomic bomb survivor's healthcare certificate shall apply to the governor of the prefecture in which the person has a place of residence (or a current residence if the person has no place of residence).
(2) The prefectural governor shall, when he/she finds that the applicant falls under any of the items of the preceding article as a result of the examination based on the application filed under the preceding paragraph, issue an atomic bomb survivor's healthcare certificate to the applicant.
(3) Necessary matters concerning an atomic bomb survivor's healthcare certificate shall be specified by a Cabinet Order.

Article 27 of the Act on Relief for Atomic Bomb Survivors
(Payment of Health Management Allowance)
(1) The prefectural governor shall pay health management allowance to a person who is an atomic bomb survivor and suffers from a disease with impaired hematopoiesis, impaired liver function or other impairments specified by an Ordinance of the Ministry of Health and Welfare (excluding those that are obviously not caused by the influence of radiation from the atomic bombing); provided, however, that this shall not apply where the person receives special medical care allowance, special allowance, or atomic bomb microcephaly allowance.
(2) The person prescribed in the preceding paragraph shall, when he/her intends to receive health management allowance, obtain recognition by the prefectural governor that he/she satisfies the requirements prescribed in the said paragraph.
(3) Upon giving recognition under the preceding paragraph, the prefectural governor shall also specify a period during which the disease is expected to last. In this case, such period shall not exceed the period specified by the Minister of Health and Welfare for each type of disease prescribed in para.1.
(4) Health management allowance shall be paid on a monthly basis, and the amount thereof shall be 33,300 yen per month.
(5) Payment of health management allowance shall commence in the month following the month that contains the day on which the person who has obtained recognition under para.2 applied for recognition under the said paragraph, and end in the month that contains the day on which the period set under para.3 for the person elapses from the date of application (in the case where the person ceases to satisfy the requirements prescribed in para.1 before the period elapses, the day on which the person ceases to satisfy the requirements).
Main text of the judgment
The final appeal is dismissed.
The appellant of final appeal shall bear the cost of the final appeal.
Reasons
I. Outline of the case
1. The appellees of final appeal are nationals of the Republic of Korea residing in said country. They are the plaintiffs in the first instance who allege to have forcibly been brought to Hiroshima City from the Korean Peninsula during World War II and exposed to the atomic bombing in Hiroshima City on August 6, 1945 (hereinafter referred to as the "plaintiffs") or their successors.
In this case, the plaintiffs allege as follows. The appellant of final appeal (the State) prepared and issued a directive entitled "Implementation of the Act for Partial Revision to the Act on Medical Care for Atomic Bomb Survivors and the Act on Special Measures for Atomic Bomb Survivors (Directive Ei-Hatsu No. 402 of July 22, 1974, issued by the Director-General of the Public Health Bureau of the Ministry of Health and Welfare to the prefectural governors as well as the mayors of Hiroshima City and Nagasaki City; hereinafter referred to as "Directive No. 402"). This directive provided that where a person who received an atomic bomb survivor's healthcare certificate under the Act on Medical Care for Atomic Bomb Survivors has moved his/her place of residence outside the territory of Japan, the Act on Special Measures for Atomic Bomb Survivors shall not apply to such person (this Act and the Act on Medical Care for Atomic Bomb Survivors shall hereinafter be collectively referred to as the "Two Acts for Atomic Bomb Survivors"), and such person shall be treated as having forfeited the right to receive health management allowance, etc. under the Act on Special Measures for Atomic Bomb Survivors. Even after the Act on Relief for Atomic Bomb Survivors was enacted in a manner so as to integrate the Two Acts for Atomic Bomb Survivors (the former two Acts and this Act shall hereinafter be collectively referred to as "Three Acts for Atomic Bomb Survivors"), the appellant continued the treatment according to the provision under Directive No. 402 until March 2003. The plaintiffs argued that the appellant thereby illegally infringed the legal status or right to which the plaintiffs are entitled to have as "atomic bomb survivors" under the Three Acts for Atomic Bomb Survivors. Based on this allegation, the plaintiffs respectively seek damages from the appellant under Article 1, para.1 of the Act on State Liability for Compensation.

2. The outline of the facts legally determined by the court of second instance (including those publicly known) is as follows:
(1) Act on Medical Care for Atomic Bomb Survivors
(a) The Act on Medical Care for Atomic Bomb Survivors was enacted in 1957 for the following purpose: "The purpose of this Act is, in light of the particular health conditions that survivors of the atomic bombings in Hiroshima City and Nagasaki City are still experiencing, to have the State provide health checkups and medical care for such atomic bomb survivors, with the aim of maintaining and promoting their health" (Article 1). This Act defined an "atomic bomb survivor," who is eligible to receive medical care, etc. under the Act, as a person who falls under the specified categories, such as a person who was, at the time of the atomic bombing, in the area of Hiroshima City or Nagasaki City or other areas adjacent to these city areas specified by a Cabinet Order and who has received an atomic bomb survivor's healthcare certificate (Article 2). The Act did not contain any nationality clause to limit the scope of eligible persons to those with Japanese nationality, but provided that a person who wishes to receive an atomic bomb survivor's healthcare certificate shall "apply to the governor of the prefecture in which the person has a place of residence (or a current residence if the person has no place of residence; the same shall apply hereinafter) (or to the mayor of Hiroshima City or Nagasaki City if the person has a place of residence in either city; the same shall apply hereinafter)" (Article 3, para.1).
(b) Directive No. 402 was issued on the occasion of the partial revision to the Two Acts for Atomic Bomb Survivors by Act No. 86 of 1974 (partially put into force on September 1, 1974, and wholly put into force on October 1, 1974). The Act on Medical Care for Atomic Bomb Survivors as partially revised by Act No. 86 of 1974 provided as follows: (i) The prefectural governor shall provide "atomic bomb survivors" with annual health checkups and necessary guidance based on such checkups; (ii) The Minister of Health and Welfare shall give "atomic bomb survivors," who were injured or sickened with diseases caused by the injuring power of the atomic bombs and are currently in need of medical care, recognition that their injury or diseases were caused by the injuring power of the atomic bombs, and shall provide them with necessary medical care at designated medical institutions or pay for their medical care costs instead; and (iii) The Minister of Health and Welfare shall pay medical care benefits for general injuries or diseases to "atomic bomb survivors" on certain conditions, for instance, that they received medical care for general injuries or diseases at medical institutions designated for atomic bomb survivors' general diseases. Under the provisions of the Act, the expenses for all of these services shall be fully covered by public funds, irrespective of the amount of income or financial conditions of "atomic bomb survivors." The affairs concerning the issuance of atomic bomb survivor's healthcare certificates, medical checkups, and necessary guidance, etc. were designated as state affairs entrusted to local public entities.
Since designated medical institutions or medical institutions designated for atomic bomb survivors' general diseases were selected from medical institutions located in Japan, persons eligible to receive medical care, etc. under the Act on Medical Care for Atomic Bomb Survivors were, in reality, "atomic bomb survivors" who have at least a current residence in Japan.
(2) Act on Special Measures for Atomic Bomb Survivors
(a) The Act on Special Measures for Atomic Bomb Survivors was enacted in 1968 for the following purpose: "The purpose of this Act is to pay special allowance and take other measures for survivors of the atomic bombings in Hiroshima City and Nagasaki City who were influenced by the injuring power of the atomic bombs and are still experiencing particular conditions, with the aim of promoting their welfare" (Article 1). This Act provided that it shall apply to "atomic bomb survivors" as defined in Article 2 of the Act on Medical Care for Atomic Bomb Survivors and that various allowances shall be paid to them depending on their health conditions, etc. The Act on Special Measures for Atomic Bomb Survivors also did not contain any nationality clause to limit the scope of eligible persons to those with Japanese nationality.
(b) The Act on Special Measures for Atomic Bomb Survivors as partially revised by Act No. 86 of 1974 provided that in addition to nursing care allowance and funeral allowance, the following allowances shall be paid: (i) special allowance to be paid under the Act on Medical Care for Atomic Bomb Survivors to "atomic bomb survivors" who obtained recognition by the Minister of Health and Welfare that their injuries or diseases were caused by the injuring power of the atomic bombs; (ii) health management allowance to be paid to "atomic bomb survivors" who suffer from diseases with impaired hematopoiesis, impaired liver function or other impairments specified by an Ordinance of the Ministry of Health and Welfare (excluding those that are obviously not caused by the influence of radiation from the atomic bombing); and (iii) medical care allowance to be paid under the Act on Medical Care for Atomic Bomb Survivors to "atomic bomb survivors" who obtained the recognition mentioned above and receive medical care for their injuries or diseases pertaining to the recognition. Under this Act, these allowances shall be paid by the prefectural governor (or the mayor of Hiroshima City or Nagasaki City; the same shall apply hereinafter), and the affairs concerning the payment of these allowances were designated as state affairs entrusted to local public entities. Although the expenses for payment of all of these allowances shall in principle be fully covered by public funds, there was a provision that if, with regard to the income of an "atomic bomb survivor" who satisfies the requirements for receiving payment of the respective allowances or a person who has a certain relationship with such atomic bomb survivor, the amount of income tax for the previous year calculated pursuant to the provisions of the Income Tax Act exceeds the amount specified by a Cabinet Order, the whole or part of the special allowance, health management allowance, medical care allowance, and nursing care allowance shall not be paid (this provision shall hereinafter be referred to as the "provision of income limitation"). The provision on income limitation concerning health management allowance, etc. was repealed when the Act on Relief for Atomic Bomb Survivors was enacted in a manner so as to integrate and succeed to the provisions of the Two Acts for Atomic Bomb Survivors, aiming at the further enhancing and upgrading of the relief measures under the these Acts.
(c) The objective of health management allowance under the Act on Special Measures for Atomic Bomb Survivors is to ensure stability of their mental conditions of "atomic bomb survivors" who are suffering from diseases accompanied by impairments caused by the influence of radiation from the atomic bombing and living in anxiety over their particular health conditions and their everyday life under medical care, and thereby contribute to promotion of their health and welfare, through payment of a fixed amount on a monthly basis. Where an "atomic bomb survivor" wishes to receive health management allowance, he/she is required to obtain recognition by the prefectural governor that he/she satisfies the requirements for receiving payment, and the prefectural governor, upon giving such recognition, shall specify a period during which the disease in question is expected to last, which shall not exceed the period specified by the Minister of Health and Welfare for each type of disease. At the time of issuance of Directive No. 402, the said period specified by the minister was set as three years (Public Notice of the Ministry of Health and Welfare No. 352 of 1968).
(d) Since the Act on Special Measures for Atomic Bomb Survivors had no detailed procedural provisions, the Ordinance for Enforcement of the Act on Special Measures for Atomic Bomb Survivors (Ordinance of the Ministry of Health and Welfare No. 34 of 1968) was enacted in order to provide for, as delegated by the said Act, procedures for implementation of the said Act and other detailed regulations necessary for the administration of the Act.
The Act on Special Measures for Atomic Bomb Survivors did not explicitly stipulate that a person who has the right to receive health management allowance, etc. loses the right if he/she moves his/her place of residence outside the area of the prefecture (or Hiroshima City or Nagasaki City; hereinafter the same shall apply). However, the Ordinance for Enforcement of the Act on Special Measures for Atomic Bomb Survivors prior to the revision by Ordinance of the Ministry of Health and Welfare No. 27 of 1974 (put into force on September 1, 1974) provided that where a person who has the right to receive health management allowance, etc. has moved his/her place of residence outside the area of the prefecture, such person shall submit the notification of right forfeiture to the prefectural governor of his/her former place of residence and shall obtain recognition again from the prefectural governor of his/her new place of residence that he/she satisfies the requirements for receiving payment of health management allowance, etc. (hereinafter referred to as "recognition of eligibility for payment"). As a result of the revision to the ordinance, the treatment of the case mentioned above was changed in the manner that the person who has the right to receive health management allowance, etc. does not lose the right but is required to report the change of place of residence to the prefectural governor of his/her new place of resident, and the prefectural governor, upon receiving the report, shall notify in writing the prefectural governor of his/her former place of residence to that effect.
(3) Atomic bomb survivors residing overseas and application of the Two Acts for Atomic Bomb Survivors, etc. thereto
(a) At the Diet session deliberating the bill for the Act on Medical Care for Atomic Bomb Survivors, there were no special questions or answers with regard to the applicability of the Act to atomic bomb survivors residing overseas (meaning atomic bomb survivors residing outside Japan; the same shall apply hereinafter). While relief measures were taken under the Act for atomic bomb survivors residing in Japan, few relief measures were available to atomic bombs survivors residing overseas. This situation resulted from the circumstances where the government officer in charge implemented the Act based on the construction that since the Act is a social security law aimed at promoting welfare for the members of communities in Japan, it is a prerequisite for the application of this Act to an atomic bomb survivor that he/she has a place of residence or a current residence in Japan, and therefore the Act shall not apply to, for instance, atomic bombs survivors residing overseas who temporarily visit Japan.
At the Diet session deliberating the bill for the Act on Special Measures for Atomic Bomb Survivors, the Minister of Health and Welfare made a statement to the effect that that the said Act would not apply to atomic bomb survivors residing overseas.
(b) Under such circumstances, A, an atomic bomb survivor residing in South Korea (meaning an atomic bomb survivor residing in the Republic of Korea; the same shall apply hereinafter) was arrested when he/she illegally entered Japan in December 1970 for the purpose of receiving medical treatment for his/her disease caused by an atomic bomb. While staying in the hospital in Fukuoka Prefecture, A filed an application to the governor of Fukuoka Prefecture for an atomic bomb survivor's healthcare certificate, but the application was rejected on the grounds that he/she failed to satisfy the requirements for eligibility for application of the Act on Medical Care for Atomic Bomb Survivors due to the lack of a place of residence or a current residence in Japan. A filed a suit with the Fukuoka District Court to seek rescission of this rejection (this case shall hereinafter be referred to as "A's Suit"). On March 30, 1974, the Fukuoka District Court rendered a judgment to uphold A's claim and rescind the rejection, on the following grounds: The Act on Medical Care for Atomic Bomb Survivors is a special law that is different from ordinary social security laws. Considering that the primary purpose of this Act is to give relief for each and every atomic bomb survivor, and that there is no provision in the Act that can be construed as requiring the existence of a place of residence or a current residence in Japan as a requirement of eligibility for application of the Act, it is appropriate to construe that all atomic bomb survivors, including foreign nationals, shall be eligible for application of the said Act when they are currently residing in Japan, and even those who have illegally entered Japan shall be eligible for application of the said Act as far as they are atomic bomb survivors.
(c) Following this judgment, on July 25, 1974, the Director-General of the Public Health Bureau of the Ministry of Health and Welfare expressed in the Answer Ei-Hatsu No. 416 of 1974, issued by the Director-General of the Public Health Bureau of the Ministry of Health and Welfare to the governor of Tokyo, that he/she changed the conventional construction of the Act on Medical Care for Atomic Bomb Survivors and adopted the following new construction: whether or not to apply the Act to atomic bomb survivors residing overseas who entered Japan should be determined by taking into consideration all factors concerned, including the period and purpose of their stay in Japan; Atomic bombs survivors residing overseas who legally entered Japan for the purpose of receiving medical treatment and have stayed in Japan for at least one month may be deemed to have a place of residence or a current residence in Japan, and it shall be allowable to issue atomic bomb survivor's healthcare certificates to such atomic bombs survivors.
On the other hand, the Director-General of the Public Health Bureau of the Ministry of Health and Welfare, as mentioned above, issued Directive No. 402 on July 22, 1974 which provided that since the Act on Special Measures for Atomic Bomb Survivors shall apply only to "atomic bomb survivors" who have a place of residence or a current residence in Japan, if an "atomic bomb survivor" moves his/her place of residence outside the territory of Japan, the said Act shall not apply to such "atomic bomb survivor" and he/she shall forfeit the right to receive health management allowance, etc. under the said Act (this treatment shall hereinafter be referred to as the "administrative treatment resulting in forfeiture of right"). Under this rule, even if an atomic bomb survivor residing overseas, after coming to Japan, receives an atomic bomb survivor's healthcare certificate and has also obtained recognition of eligibility for payment of health management allowance, etc., they would lose the status of "atomic bomb survivor" for the purpose of the Act upon their departure from Japan, in which case they would be treated as having forfeited the right to receive health management allowance, etc. and payment would be stopped.
(d) The governor of Fukuoka Prefecture appealed against the judgment of the Fukuoka District Court mentioned above. The Fukuoka High Court, on July 17, 1975, rendered a judgment to dismiss the governor's appeal, on the following grounds: The Act on Medical Care for Atomic Bomb Survivors, although it has a nature of social security law, is a kind of special law that also has the nature of a law stipulating state compensation for atomic bomb survivors, and there is no provision in this Act to limit the scope of application to those having a place of residence or a current residence in Japan. Therefore, the Act shall also apply to atomic bomb survivors who illegally entered Japan.
On September 1, 1975, the Director-General of the Public Health Bureau of the Ministry of Health and Welfare expressed that he/she adopted a new construction with regard to the application of the Act on Medical Care for Atomic Bomb Survivors to atomic bomb survivors residing overseas whereby those who have stayed in Japan at least for about one month after legally entering Japan, regardless of the purpose of their entry, may be deemed to have a place of residence or a current residence in Japan, and it is to be allowable to issue atomic bomb survivor's healthcare certificates to such atomic bomb survivors (Answer Ei-Hatsu No. 500 of 1975, issued by the Director-General of the Public Health Bureau of the Ministry of Health and Welfare to the mayor of Hiroshima City).
(e) The governor of Fukuoka Prefecture further appealed against this judgment. On March 30, 1978, the Supreme Court rendered a judgment to dismiss the governor's appeal, holding as follows: The Act on Medical Care for Atomic Bomb Survivors, in addition to its nature as a social security law, also has the nature of a humanitarian law that is substantially based on the aspect of state compensation, which means that the State, the party that took charge of prosecuting the war, shall assume responsibility for giving relief for extraordinary damage from war, and is intended to actually give relief to atomic bomb survivors while paying attention to their particular health conditions. Furthermore, Article 3, para.1 of the said Act contemplates to include atomic bomb survivors who do not have a place of residence in Japan in the scope of eligible persons. Taking these into consideration, the court concluded that it is in line with the purpose of state compensation under the Act to allow a broader scope of application of the Act and give relief to atomic bomb survivors as far as they have a current residence in Japan, regardless of the reasons for their residence, and that the Act shall also apply to atomic bomb survivors who illegally entered Japan (See 1975 (Gyo-Tsu) No. 98, judgment of the First Petty Bench of the Supreme Court of March 30, 1978, Minshu Vol. 32, No. 2, at 435).
Following this judgment, on April 4, 1978, the Director-General of the Public Health Bureau of the Ministry of Health and Welfare further changed the construction on the applicability of the Act on Medical Care for Atomic Bomb Survivors so as to apply the Act also to atomic bomb survivors residing overseas as far as they are currently residing in Japan, regardless of the reasons for their current residence in Japan, and to issue atomic bomb survivor's healthcare certificates to such atomic bomb survivors (Notice Ei-Hatsu No. 288 of 1978, given by the Director-General of the Public Health Bureau of the Ministry of Health and Welfare to the prefectural governors and the mayors of Hiroshima City and Nagasaki City). However, the rule of administrative treatment resulting in forfeiture of right under Directive No. 402 was maintained, and even after the Act on Relief for Atomic Bomb Survivors was put into force on July 1, 1995, the administrative treatment resulting in forfeiture of right under Directive No. 402 continued to be made based on the notice issued by the Vice Minister of Health and Welfare as of May 15, 1995, entitled "Implementation of the Act on Relief for Atomic Bomb Survivors" (Notice Hatsu-Ken-I No. 158 of 1995, given by the Vice Minister of Health and Welfare to the prefectural governors and the mayors of Hiroshima City and Nagasaki City).
(f) After that, in 1998, another atomic bomb survivor residing in South Korea, B, came to Japan to receive medical treatment. Having received an atomic bomb survivor's healthcare certificate from the governor of Osaka Prefecture, B obtained recognition of eligibility for payment of health management allowance and actually received payment, but then payment was stopped upon his/her departure from Japan. Dissatisfied with this treatment, B filed a suit with Osaka District Court to seek, against the appellant, a declaration that he/she holds the status of "atomic bomb survivor" under the Act on Relief for Atomic Bomb Survivors, and also to seek, from the government of Osaka Prefecture, payment of health management allowance allegedly receivable for the period after payment was stopped. On June 1, 2001, Osaka District Court rendered a judgment to uphold B's claims, stating that having a place of residence or a current residence in Japan cannot be construed as a requirement for maintaining a valid status of "atomic bomb survivor" under the Act on Relief for Atomic Bomb Survivors, and therefore B shall not lose the status of "atomic bomb survivor" upon his/he departure from Japan. Against this judgment, both the appellant and the government of Osaka Prefecture appealed, but Osaka High Court, on December 5, 2002, rendered a judgment to dismiss the appeals for the same reasons as those given by Osaka District Court.
The appellant and the government of Osaka Prefecture did not appeal against the high court's judgment. On March 1, 2003, the Director-General of the Health Service Bureau of the Ministry of Health, Labour and Welfare issued a notice entitled "Implementation of the Cabinet Order, etc. for Partial Revision to the Order for Enforcement of the Act on Relief for Atomic Bomb Survivors" (Notice Ken-Hatsu No. 0301002 of 2003, issued by the Director-General of the Health Service Bureau of the Ministry of Health, Labour and Welfare to the prefectural governors and the mayors of Hiroshima City and Nagasaki City). This notice abolished the rule of administrative treatment resulting in forfeiture of right under Directive No. 402 and changed the treatment so that even in the cases where "atomic bomb survivors" who obtained recognition of eligibility for payment of health management allowance, etc. in Japan have departed from Japan or where "atomic bomb survivors" who applied for recognition of eligibility for payment of health management allowance, etc. in Japan have obtained recognition of eligibility for payment after departing from Japan, allowance shall be paid to such "atomic bomb survivors."
(4) Circumstances where the plaintiffs survived the atomic bombing
(a) The plaintiffs, in 1944 during World War II, were requisitioned with requisition warrants under the National Requisition Ordinance, forcibly brought to Hiroshima City from various places in the Korean Peninsula, delivered to a heavy industries company, and made to engage in work at the company's machine factory and shipbuilding plant. On August 6, 1945, they were exposed to the atomic bombing in Hiroshima City. The areas where they experienced the atomic bombing are included in the scope of areas designated for eligibility to obtain recognition as "atomic bomb survivors" under the Three Acts for Atomic Bomb Survivors. However, among the plaintiffs, nobody received an atomic bomb survivor's healthcare certificate prior to the issuance of Directive No. 402.
(b) Fourteen plaintiffs, namely Plaintiffs X1, X2, X3, X4, X7, X9, X17, X21, X32, X34, X35, X36, X37, and X39, respectively, received atomic bomb survivor's healthcare certificates during the period from December 20, 1981 to May 16, 1995, obtained recognition of eligibility for payment of health management allowance, and actually received payment of health management allowance for one to three months during the period from April 1988 to August 1995, but then under Directive No. 402, payment was stopped for all of them on the grounds of their departure from Japan. Among these plaintiffs, those who were alive when the rule of administrative treatment resulting in forfeiture of right under Directive No. 402 was abolished later started to receive payment again by filing applications for recognition of eligibility for payment in March or May 2003.
Sixteen plaintiffs, namely Plaintiffs X5, X6, X11, X12, X13, X14, X18, X19, X20, X23, X24, X25, X26, X33, X38, and X40, respectively, received atomic bomb survivor's healthcare certificates during the period from December 20, 1981 to December 2, 1996, but never received payment of health management allowance until rule of administrative treatment resulting in forfeiture of right under Directive No. 402 was abolished. Among these plaintiffs, those who were alive at the time of abolishment of the said rule filed applications for recognition of eligibility for payment of health management allowance in May 2003, except for those who died immediately after the abolishment and those who were unable to come to Japan.
Ten plaintiffs, namely Plaintiffs X8, X10, X15, X16, X22, X27, X28, X29, X30, and X31, respectively, never received an atomic bomb survivor's healthcare certificate before the rule of administrative treatment resulting in forfeiture of right under Directive No. 402 was abolished. Among these plaintiffs, those who were alive at the time of abolishment of the said rule filed provisional applications (preliminary applications before coming to Japan) for atomic bomb survivor's healthcare certificates on March 3 or April 10, 2003. Among them, Plaintiff X27 and Plaintiff X28 received atomic bomb survivor's healthcare certificates in December 2003 and filed applications for recognition of eligibility for payment of health management allowance.
The plaintiffs did not apply for atomic bomb survivor's healthcare certificates or for recognition of eligibility for payment of health management allowance before the rule of administrative treatment resulting in forfeiture of right under Directive No. 402 was abolished, nor did they apply for recognition of eligibility for payment of health management allowance again after the period of recognition of eligibility expired, not because they had difficulties coming to Japan but because Directive No. 402, which provided for the administrative treatment resulting in forfeiture of right, still existed. Should Directive No. 402 not have existed, the plaintiffs would have performed the application procedures earlier and their applications should have been accepted.

3. The court of second instance, on the grounds stated below, admitted the appellant's liability for damages under Article 1, para.1 of the Act on State Liability for Compensation, and upheld each plaintiff's claim to the extent to seek from the appellant payment of 1.2 million yen in total, consisting of one million yen as compensation for non-pecuniary damage and 200,000 yen as attorney's fees, with delay damages thereon. The court did not find the occurrence of any damage equivalent to the amount of payment of health management allowance that the plaintiffs allegedly should have received.
(1) The rule of administrative treatment resulting in forfeiture of right under Directive No. 402 has no equivalent in other similar systems in that, without any explicit legal ground, it necessarily and unilaterally deprives an atomic bomb survivor of a legal status that he/she has legally and effectively obtained, only by reason of his/her departure from Japan, and furthermore, it has a serious influence on atomic bomb survivors. Considering these, when preparing and issuing Directive No. 402, the appellant should have fully investigated and examined whether or not there was any legal ground for such construction or treatment that leads to the forfeiture of right upon departure from Japan, and if the appellant did so, we can find that it would be sufficiently possible for the appellant to have recognized illegality of the rule of administrative treatment resulting in forfeiture of right under Directive No. 402. Yet, the appellant did not try to clearly explain the very circumstances where Directive No. 402 was prepared and issued, and even by examining the whole evidence of this case, we still cannot find that the appellant fully investigated or considered this issue. The appellant, nevertheless, prepared and issued Directive No. 402 based on an erroneous construction of the relevant legal provisions and continued to take the administrative treatment resulting in forfeiture of right based on the directive. We should find the appellant, by doing so, to have breached its basic official duty of construing statutes faithfully, or at least neglected such duty.
Consequently, in accordance with Article 1, para.1 of the Act on State Liability for Compensation, the appellant is liable to compensate for damage that it caused to the plaintiff by preparing and issuing Directive No. 402, which is illegal, and continuing to take the administrative treatment resulting in forfeiture of right based on the directive.
(2) The plaintiffs, while being subject to unfair discrimination against atomic bomb survivors, harbored various feelings such as worries about their health and living, which were growing due to unavailability of proper medical treatment, and anger and resentment for being forced into such circumstances and left without receiving any relief because they were residing in South Korea. At that time, triggered by the judgment of A's Suit, a sign of hope appeared for the plaintiffs to receive relief under the Two Acts for Atomic Bomb Survivors, but just then, Directive No. 402 was prepared and issued, and the administrative practice based on this directive was continued after that. This made the plaintiffs feel further stronger disappointment and anger, a sense of being discriminated, and dissatisfaction, and also feeling irritated by their aging, the plaintiffs at last had no choice but to file this suit.
(3) This case is an extraordinary one in which with regard to relief for atomic bomb survivors who suffered unprecedented serious damage caused by the atomic bombing, the appellant prepared and issued the directive based on an erroneous construction of the relevant statutes. In light of the seriousness, magnitude, and particular nature of the mental distress that the plaintiffs suffered before filing this suit, it is appropriate to grant each of them one million yen as compensation for their mental distress.

II. Concerning Reasons II-1 to 4 and III for the petition for acceptance of final appeal argued by the appeal counsel, OTAKE Takashi, et al.
1. Under the Two Acts for Atomic Bomb Survivors, the term "atomic bomb survivor," who shall be eligible for various relief measures under these Acts, is defined as a person who was, at the time of the atomic bombing, in the area of Hiroshima City or Nagasaki City, and has received an atomic bomb survivor's healthcare certificate by applying to the governor of the prefecture of his/her place of residence (or a current residence if the person has no place of residence). As a requirement of eligibility for various relief measures under the Two Acts for Atomic Bomb Survivors, these Acts do not require applicants, in addition to satisfying the definition of "atomic bomb survivor," to have a place of residence in Japan. Furthermore, the Acts do not contain a provision that a person who has acquired the status of "atomic bomb survivor" by receiving an atomic bomb survivor's healthcare certificate and then acquired the right to receive health management allowance, etc. by obtaining the prefectural governor's recognition of eligibility for payment shall forfeit the right to receive allowance upon moving his/her place of residence outside Japan. Accordingly, we should conclude that the rule of administrative treatment resulting in forfeiture of right under Directive No. 402, which provides that an "atomic bomb survivor" who has acquired the right to receive health management allowance, etc. shall forfeit the right upon moving his/her place of residence outside Japan, is an illegal rule based on an erroneous construction of the Two Acts for Atomic Bomb Survivors. Consequently, the rule of administrative treatment resulting in forfeiture of right under Directive No. 402 is obviously contrary to the Act on Relief for Atomic Bomb Survivors that was enacted in a manner so as to integrate the Two Acts for Atomic Bomb Survivors.
Nevertheless, even if the rule under the directive issued by the government official in charge is an illegal one based on an erroneous construction of the relevant legal provisions, this does not directly lead to the conclusion that the official in charge who issued the directive and continued the treatment based on the directive should be judged to have acted illegally for the purpose of Article 1, para.1 of the Act on State Liability for Compensation. It is rather appropriate to construe that such official should be judged to have acted illegally only where he/she is deemed to have acted carelessly without fulfilling the duty of care usually required in the course of performing his/her official duties (See 1978 (O) No. 1240, judgment of the First Petty Bench of the Supreme Court of November 21, 1985, Minshu Vol. 39, No. 7, at 1512; 1989 (O) Nos. 930 and 1093, judgment of the First Petty Bench of the Supreme Court of March 11, 1993, Minshu Vol. 47, No. 4, at 2863).
However, Directive No. 402 contains a rule that would bring about a serious consequence to atomic bomb survivors in that it would treat them as having forfeited the right to receive health management allowance, etc. that had already come into existence as a specific legal right. A directive is, in general, issued by an administrative organ to its subordinate administrative organ to indicate the criteria for construction of certain legal provisions so as to ensure the consistency in the administrative treatment, and therefore it does not have legal binding effect directly on citizens. However, when the government official in charge issued the directive that would bring about a serious consequence as mentioned above on behalf of the appellant, which is the superior administrative organ that has direct authority and responsibility for ensuring consistency in the construction and implementation of the Three Acts for Atomic Bomb Survivors, and continued the treatment based on this directive, the official should have fulfilled the official duty of care of considering carefully to a significant extent whether or not the contents of the directive were consistent with the legal provisions of the Three Acts for Atomic Bomb Survivors and therefore legal.
2. The Act on Medical Care for Atomic Bomb Survivors enacted in 1957 does not explicitly stipulate, as a requirement of eligibility to obtain the status of "atomic bomb survivor" as defined under the said Act or to receive relief measures under the said Act that it is required to have a place of residence in Japan. However, the Act designated the "prefectural governor" as the authority to implement health checkups and other health management measures for "atomic bomb survivors," which may possibly be construed to presuppose that "atomic bomb survivors" continue to have a place of residence or a current residence in Japan. Also, the relief measures under the said Act were limited to medical care provided at designated medical institutions located in Japan. Furthermore, the Act on Special Measures for Atomic Bomb Survivors enacted in 1968, which introduced various allowances as relief measures, also designated the prefectural governor as the authority to pay these allowances and provided that "atomic bomb survivors" who receive allowances shall make a necessary report to the prefectural governor. Besides, the Act contained the provision of income limitation as a requirement for receiving payment of health management allowance, etc.
Based on these provisions of the Two Acts for Atomic Bomb Survivors, the government official in charge consistently maintained the construction that the Two Acts for Atomic Bomb Survivors shall apply only to atomic bomb survivors who have a place of residence or a current residence in Japan and shall not apply to atomic bomb survivors residing outside Japan. This construction was presented at the Diet sessions by the Minister of Health and Welfare and the official in charge, but no special objections seem to have been raised.
Given these facts, we can find that the official in charge had some grounds for initially implementing the Two Acts for Atomic Bomb Survivors based on the construction that these Acts shall not apply to atomic bomb survivors residing outside Japan, and we cannot see that the official in charge had any chance to be forced to reconsider whether or not this construction of law was consistent with objectively correct construction of the provisions of the Two Acts for Atomic Bomb Survivors and was legal under the Acts.
Assuming so, we should conclude that it is difficult to go so far as to find the official in charge, at the time prior to the issuance of Directive No. 402 in 1974, to have implemented the Two Acts for Atomic Bomb Survivors illegally and carelessly without fulfilling the duty of care usually required in the course of performing his/her official duties only because the person implemented the Two Acts for Atomic Bomb Survivors based on the construction that these Acts shall not apply to atomic bomb survivors residing outside Japan.
3. However, subsequently, in March 1974, the judgment rendered in the first instance of A's Suit gave a judicial ruling that according to the provisions of the Act on Medical Care for Atomic Bomb Survivors as explained above, the Act cannot be construed as requiring atomic bomb survivors to have a place of residence or a current residence in Japan as a requirement of eligibility for application of the Act, and therefore the Act shall also apply to atomic bomb survivors residing in South Korea who illegally entered Japan. Following this judgment, the official in charge, around July 1974, abandoned the conventional practice in which atomic bomb survivors residing overseas shall be completely excluded from the scope of application of the Two Acts for Atomic Bomb Survivors and atomic bomb survivor's healthcare certificates shall not be issued to them, and adopted a new practice in which atomic bomb survivors residing overseas, if they legally entered Japan for the purpose of receiving medical treatment and have stayed in Japan for at least one month, shall be regarded as having a place of residence or a current residence in Japan and therefore deemed to be eligible for application of the Two Acts for Atomic Bomb Survivors and given atomic bomb survivor's healthcare certificates, and they shall also be given recognition of eligibility for payment if they satisfy the requirements for receiving payment of health management allowance, etc.
Directive No. 402 was issued under these circumstances, as of July 22, 1974, upon the partial revision to the Two Acts for Atomic Bomb Survivors by Act No. 86 of 1974. It introduced the rule of administrative treatment resulting in forfeiture of right in relation to the revision to the Ordinance for Enforcement of the Act on Special Measures for Atomic Bomb Survivors by Ordinance of the Ministry of Health and Welfare No. 27 of 1974. However, the revision made by the ordinance was to change the conventional practice, in which a person who has the right to receive health management allowance, etc. under the Act on Special Measures for Atomic Bomb Survivors, upon moving his/her place of residence outside the area of the prefecture, shall temporarily forfeit the right to receive allowance because the prefectural governor is the authority to pay allowance, into the new practice in which such person shall not forfeit the right to receive allowance for such reason.
Given the facts mentioned above, we can see that at the time of issuance of Directive No. 402, the official in charge was forced to reconsider whether or not the conventional construction and implementation of the Two Acts for Atomic Bomb Survivors that the appellant had maintained so far -- i.e. the said Acts shall not apply to atomic bomb survivors residing overseas at all -- could be justified as an objective construction of the Acts, and as a result of such reconsideration, the person should become aware that the conventional practice in which atomic bomb survivors residing overseas shall be completely excluded from the scope of application of the Two Acts for Atomic Bomb Survivors and atomic bomb survivor's healthcare certificates shall not be issued to them, as well as another conventional practice in which a person who has the right to receive health management allowance, etc., upon moving his/her place of residence outside the area of the prefecture, shall temporarily forfeit the right to receive allowance, were illegal due to the lack of legal grounds.
There are various systems for payment of pension, allowance, and medical care costs, etc., and many of these systems require applicants to have a domicile or residence in Japan as a requirement of eligibility for payment. However, under such systems, as a general rule, it is explicitly stipulated in the text of the statutes that having a domicile or residence in Japan is a requirement for receiving payment or that the right to receive payment shall be forfeited upon losing a domicile or residence in Japan (National Health Insurance Act, National Pension Act, Child Rearing Allowance Act, Act on Payment of Child Rearing Allowance, etc.). However, the Two Acts for Atomic Bomb Survivors do not explicitly stipulate that atomic bomb survivors are required to have a place of residence in Japan as a requirement of eligibility for application of the Acts, and what is more, these Acts also do not explicitly stipulate that the right to receive various allowances that once came into existence in accordance with the Acts as a right of "atomic bomb survivors" shall be forfeited when "atomic bomb survivors" move their place of residence outside Japan. Nevertheless, although the official in charge, by the time of issuance of Directive No. 402, had abandoned the conventional construction that these Acts shall not apply to atomic bomb survivors residing overseas and had recognized that atomic bomb survivors residing overseas may acquire the right to receive various allowances if they satisfy certain requirements, the official in charge, issued Directive No. 402 based on the construction that a "atomic bomb survivor" shall forfeit the right even after the right to receive allowances actually came into existence by a reason that was not explicitly stipulated by law -- i.e. on the ground that he/she moved his/her placed of residence outside Japan.
Even if we take into consideration the aspect of the Two Acts for Atomic Bomb Survivors as social security laws, we should say that the justifiability of the aforementioned construction should inevitably be questioned from the perspective of ensuring consistency with the provisions of statutes governing other systems for pension or allowance payment, and as explained above, if the official in charge, who had acted on behalf of the appellant who is the superior administrative organ that had direct authority and responsibility for ensuring consistency in the construction and implementation of the Two Acts for Atomic Bomb Survivors, fulfilled the duty of care usually required in the course of performing his/her official duties when he/she was given the opportunity to reconsider, before issuing Directive No. 402, whether or not the conventional construction and implementation of the Acts that the appellant had maintained thus far could be justified as an objective construction, the person could have necessarily recognized the question of justifiability.
Consequently, we should conclude that the official in charge should inevitably be judged to have acted illegally under the Act on State Liability for Compensation by issuing Directive No. 402, of which the contents are illegal based on an erroneous construction of the Two Acts for Atomic Bomb Survivors.
We should also find the official in charge to have acted illegally under the Act on State Liability for Compensation by continuing the administrative treatment resulting in forfeiture of right under Directive No. 402, which is illegal as explained above.
4. For the reasons stated above, we should conclude that the act of the official in charge, who prepared and issued Directive No. 402 and continued the administrative treatment resulting in forfeiture of right under this directive, is in breach of his/her official duty of care to be fulfilled as a public officer and therefore illegal under Article 1, para.1 of the Act on State Liability for Compensation, and it is also obvious that the official in charge was negligent for committing such act. Therefore, the appellant is liable to compensate for the damage suffered by the plaintiffs. The determination of the court of second instance with regard to the issues argued by the appeal counsels can be affirmed in conclusion. The appeal counsels' argument cannot be accepted.
The judicial precedents cited by the appeal counsels (1967 (O) No. 692, judgment of the First Petty Bench of the Supreme Court of June 24, 1971, Minshu Vol. 25, No. 4, at 574; 1970 (O) No. 886, judgment of the First Petty Bench of the Supreme Court of December 12, 1974, Minshu Vol. 28, No. 10, at 2028; 1988 (Gyo-Tsu) No. 41, judgment of the Third Petty Bench of the Supreme Court of July 9, 1991, Minshu Vol. 45, No. 6, at 1049; and 2002 (Ju) No. 687, judgment of the First Petty Bench of the Supreme Court of January 15, 2004, Minshu Vol. 58, No. 1, at 226) are all irrelevant in this case because they address different types of factual circumstances.

III. Concerning Reasons II-5 for the petition for acceptance of final appeal argued by the appeal counsel, OTAKE Takashi, et al.
According to the facts mentioned above, if the plaintiffs, atomic bomb survivors who suffered extraordinary health damage that is different from other damage from war, had applied for atomic bomb survivor's healthcare certificates or recognition of eligibility for payment of health management allowance, their applications should have been accepted. However, because of the existence of Directive No. 402, an illegal directive issued by the appellant, they did not try to receive atomic bomb survivor's healthcare certificates or obtain recognition of eligibility for payment of health management allowance by traveling all the way to Japan with a significant financial or physical burden. As a result, for a long period of time until the rule of administrative treatment resulting in forfeiture of right under Directive No. 402 was abandoned, the plaintiffs were excluded from the scope of persons eligible to receive relief measures under the Three Acts for Atomic Bomb Survivors, and forced to continue to live in anxiety over their health and financial conditions while suffering from extraordinary health damage caused by atomic bombing, and they also suffered various mental distress. In addition to these circumstances, taking into consideration the fact that payment of health management allowance is partially intended to ensure stability of mental conditions of "atomic bomb survivors," we do not find it impossible to affirm the determination of the court of second instance, which upheld each plaintiff's claim to the extent to seek one million yen as compensation for non-pecuniary damage by concluding, on the assumption that the plaintiffs cannot be deemed to have suffered property damage from the fact that the official in charge prepared and issued Directive No. 402, an illegal directive, based on an erroneous construction of the Three Acts for Atomic Bomb Survivors and continued the administrative treatment resulting in forfeiture of right under this directive, that the plaintiffs suffered non-pecuniary damage from the infringement of their inner peace of mind, which deserves legal protection. The appeal counsels' argument cannot be accepted.

Therefore, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices except that there is a dissenting opinion by Justice KAINAKA Tatsuo.

The dissenting opinion by Justice KAINAKA Tatsuo is as follows.
The plaintiffs made a claim to seek damages from the appellant under Article 1, para.1 of the Act on State Liability for Compensation by alleging that the appellant infringed the legal status or right which the plaintiffs are entitled to have as "atomic bomb survivors" under the Three Acts for Atomic Bomb Survivors. In my opinion, their claim should be dismissed for the following reasons.
1. I am in agreement with the majority opinion in that it concluded that since the Three Acts for Atomic Bomb Survivors, as a requirement of eligibility to receive various relief measures, only require an applicant to be an "atomic bomb survivor" and do not require them to have a place of residence in Japan, the rule under Directive No. 402, which provides that "atomic bomb survivors" who acquired the right to receive health management allowance, etc. shall forfeit the right upon moving their place of residence outside Japan, should inevitably be deemed to be based on an illegal construction of the Three Acts for Atomic Bomb Survivors.
However, I cannot agree with the majority opinion in that it concluded that the act of the official in charge who prepared and issued Directive No. 402 and continued the treatment based on this directive lacks reasonable legal grounds, and it is in breach of the official's duty of care usually required in the course of performing his/her official duties and therefore illegal under Article 1, para.1 of the Act on State Liability for Compensation, and that the official in charge was also negligent for committing such act.
(1) Examining the provisions of the Two Acts for Atomic Bomb Survivors in their entirety as of the time when Directive No. 402 was prepared and issued, it is found that, as the majority opinion pointed out, while there was no explicit provision that can be the direct ground for denying the applicability of the Two Acts for Atomic Bomb Survivors to "atomic bomb survivors" residing overseas, there were provisions in these Acts that can be construed to be based on the construction adopted by the appellant when preparing and issuing Directive No. 402. Furthermore, there are other grounds, which concern the nature of the Two Acts for Atomic Bomb Survivors and legislators' intention, for adopting such construction, including the following:
(a) Income limitation for various allowances
With regard to special allowance, health management allowance, medical care allowance, and nursing care allowance under the Act on Special Measures for Atomic Bomb Survivors as of the time when Directive No. 402 was prepared and issued, there were provisions of income limitation (Article 3, Article 6, Article 8, Article 9, para.2), which stipulate that if, with regard to the income of an "atomic bomb survivor" or his/her spouse, etc., the amount of income tax for the previous year calculated pursuant to the provisions of the Income Tax Act exceeds the specified amount, the whole or part of the allowance shall not be paid.
Income tax is, of course, imposed on people residing in Japan (Article 7, para.1 of the Income Tax Act) and it shall not be imposed on people residing in foreign states. Besides, since the provision of income limitation is not a mere procedural provision but a provision determining the existence or nonexistence of a substantive right, it is impossible to apply this provision to people residing in foreign states. Should we construe that people residing in foreign states (including foreign nationals) shall not be subject to the provision of income limitation, it would lead to the construction that the Act on Special Measures for Atomic Bomb Survivors, by paying various allowances to "atomic bomb survivors" residing in foreign states without imposing an income limitation, provides them with stronger protection than "atomic bomb survivors" residing in Japan, most of whom are Japanese nationals. I doubt if the Act really takes such an unreasonable stance. After all, the provision of income limitation can be a ground for construing the Two Acts for Atomic Bomb Survivors as presupposing that they shall not apply to people residing in foreign states.
Next, I examine what statutes have the provision of income limitation.
Examining the statutes concerning medical care benefits, allowance, and pension, the following can be found: (i) there is no provision of income limitation in the statutes under which allowance, etc. shall also be paid to people residing in foreign states, such as the Act for Relief of War Victims and Survivors, Act for Special Aid to the Wounded and Sick Retired Soldiers Public Officials Pension Act, Welfare Pension Insurance Act, etc. (ii) On the other hand, the Child Allowance Act, Child Rearing Allowance Act, and Act on Payment of Child Rearing Allowance, etc. require applicants to have a domicile in Japan, while also providing for income limitation. (iii) The three Acts mentioned in (ii) are statutes for noncontributory social security programs, and it is obvious that the Two Acts for Atomic Bomb Survivors also have the nature of statutes for noncontributory social security programs.
Consequently, even if the official in charge, at the time of preparing and issuing Directive No. 402, construed that the Two Acts for Atomic Bomb Survivors were statutes for noncontributory social security programs, to which the principle of territoriality shall apply, and therefore these Acts, unless explicitly provided otherwise, shall not apply to people residing in foreign states who can never be expected to have social solidarity in Japan, and that the existence of an income limitation provision can be the ground for such construction, this construction is fully understandable in terms of consistency with other relevant statutes.
(b) Article 3, para.1 of the Act on Medical Care for Atomic Bomb Survivors provides that in order to receive an atomic bomb survivor's healthcare certificate, it is necessary to apply to the governor of the prefecture where the applicant has a place of residence or a current residence, and receiving this certificate is the requirement for obtaining the statue of "atomic bomb survivor" eligible for various relief measures under the Two Acts for Atomic Bomb Survivors. It follows that this provision could be possibly understood as being based on the construction that the Two Acts for Atomic Bomb Survivors shall apply only to people having a place of residence or a current residence in Japan.
(c) The Act on Medical Care for Atomic Bomb Survivors was mainly intended to provide medical care at medical institutions located in Japan and operated under the guidance and supervision of the Minister of Health and Welfare, and more specifically, to provide continuous medical care such as annual health checkups (Article 4) and necessary guidance based on such checkups (Article 6). In this context, the said Act could be construed to be supposed to be applicable to people having a place of residence or a current residence in Japan.
(d) If it were contemplated to apply the Two Acts for Atomic Bomb Survivors also to "atomic bomb survivors" residing overseas and provide relief to them, these Acts must have contained a procedural provision for such purpose. However, although the Two Acts for Atomic Bomb Survivors have specific procedural provisions applicable to people having a place of residence or a current residence in Japan, they do not contain any procedural provision applicable to people residing in foreign states, or in other words, people having no place of residence nor current residence in Japan.
(e) In the legislative process of enacting the Two Acts for Atomic Bomb Survivors, government committee members, etc. consistently stated that these Acts shall not apply to "atomic bomb survivors" residing overseas, and this was also the intention of the legislator.
Taking into consideration all circumstances concerned, including the overall framework of the relevant laws and regulations existent at the time of preparing and issuing Directive No. 402 and the legal nature thereof as well as the legislator's intention, I cannot help but conclude that at the time of preparing and issuing Directive No. 402 in 1974, the official in charge had reasonable legal grounds for construing that the Two Acts for Atomic Bomb Survivors shall not apply to people residing in foreign states, and according to this construction, I would say that the rule of administrative treatment resulting in forfeiture of right under Directive No. 402 should be a natural consequence and also based on reasonable legal grounds. Consequently, I should inevitably conclude that I cannot find any such circumstances where the official in charge should be deemed to have prepared and issued Directive No. 402 carelessly without fulfilling the duty of care usually required in the course of performing his/her official duties, and therefore I cannot judge the official to have acted illegally under Article 1, para.1 of the Act on State Liability for Compensation (See 1989 (O) Nos. 930 and 1093, judgment of the First Petty Bench of the Supreme Court of March 11, 1993, Minshu Vol. 47, No. 4, at 2863).
Basically, in order to say that a construction of a statute based on certain legal grounds has lost such ground at a certain point of time, there must be a new development that would affect the construction, such as revision to the statute or the court's rulings showing a clearly opposite construction. In this case, even the majority opinion recognized that there were some grounds for the construction of the Two Acts for Atomic Bomb Survivors adopted by the official in charge (II-2 of the majority opinion). During the period after the Two Acts for Atomic Bomb Survivors were enacted until Directive No. 402 was prepared and issued, no such development seems to have occurred, and therefore the said construction cannot be deemed to have lost its legal grounds. The judgment rendered in the first instance of A's Suit, which is pointed out by the majority opinion, only indicated the possibility that atomic bomb survivors who illegally entered Japan may be eligible for application of the Act on Medical Care for Atomic Bomb Survivors if they have a current residence in Japan, and it did not mean to allow application of the Two Acts for Atomic Bomb Survivors generally to atomic bomb survivors residing overseas or those who do not actually have a current residence in Japan. Even if we also take into consideration the fact that the official in charge, following the judgment of first instance in A's Suit, changed the practice so as to issue atomic bomb survivor's healthcare certificates to atomic bomb survivors who have resided in Japan for a certain period of time, these circumstances cannot be the reason to deny the legal grounds that initially existed for the construction adopted by the official in charge.
Subsequently, the provision of income limitation was repealed upon the enforcement of the Act on Relief for Atomic Bomb Survivors on July 1, 1995. However, as the statements presented by the government committee members, etc. in the legislative process of this Act presupposed that the Act will not apply to people residing in foreign states, the scope of application of law for atomic bomb survivors was not expanded overseas or the nature thereof was not changed by the Act. Consequently, the official in charge cannot be deemed to have acted illegally under the Act on State Liability for Compensation only on the ground that the official considered, from such legislative background, that there had been no change to the nature of law, and did not immediately abolish the rule of administrative treatment resulting in forfeiture of right under Directive No. 402.
(2) In the case where there is a conflict of views over how to construe a statute with regard to a certain matter and practices relating thereto differ accordingly, and both views have reasonable grounds, if a public officer performs public duties while relying on either view that he/she considers justifiable, it is inappropriate to immediately find the public officer to have been negligent in doing so only because his/her performance of duties is later judged to be illegal (See 1967 (O) No. 692, judgment of the First Petty Bench of the Supreme Court of June 24, 1971, Minshu Vol. 25, No. 4, at 574; and 2001 (Gyo-Hi) Nos. 266 and 267, judgment of the First Petty Bench of the Supreme Court of January 15, 2004, Minshu Vol. 58, No. 1, at 156).
In this case, I can find that the official in charge had considerable legal grounds, as explained in 1(1) above, for preparing and issuing Directive No. 402 based on the construction that the Three Acts for Atomic Bomb Survivors shall not apply to atomic bomb survivors residing outside Japan, and maintaining the treatment under this directive. The legality of Directive No. 402 had never been questioned until recently.
The Supreme Court judgment on A's Suit only indicated, as the judgment of first instance, that the atomic bomb survivors who illegally entered Japan shall also be eligible for application of the Act on Medical Care for Atomic Bomb Survivors as long as they reside in Japan, and needless to say, it did not make any determination on whether or not the Act on Special Measures for Atomic Bomb Survivors, which is mainly intended to pay various allowances, shall apply to atomic bomb survivors who do not have a current residence in Japan. Consequently, the said Supreme Court judgment cannot be a triggering factor that could have urged the official in charge to doubt the justifiability of the conventional construction of the Act on Special Measures for Atomic Bomb Survivors.
The legality of Directive No. 402 was never questioned at court until it was addressed in the first instance of this suit, and the judgment of first instance of this suit rendered on March 25, 1999 was the first judicial decision on this question and affirmed the legality of Directive No. 402 and the administrative treatment resulting in forfeiture of right enforced by the appellant based on this directive. However, subsequently on June 1, 2001, Osaka District Court rendered a judgment in B's suit ruling that the status of "atomic bomb survivor" under the Act on Relief for Atomic Bomb Survivors shall not be forfeited upon departure from Japan, which is contrary to the judgment of first instance in this case. The appellant appealed against the judgment of Osaka District Court with the intention of seeking a higher court's ruling that would settle such a conflict in judicial decisions. On December 5, 2002, Osaka High Court dismissed the appellant's appeal, and the appellant, on March 1, 2003, abolished the rule of administrative treatment resulting in forfeiture of right under Directive No. 402, without filing an appeal against the high court's judgment.
Considering these backgrounds, I can find that the official in charge had reasonable legal grounds for preparing and issuing Directive No. 402 and continuing the administrative treatment resulting in forfeiture of right under this directive, as some judicial precedents affirmed such act. Then, the official in charge only responded to a new judicial decision on this issue, and therefore cannot be deemed to have been negligent under the Act on State Liability for Compensation.
2. The judgment of prior instance found illegality and negligence under the Act on State Liability for Compensation with regard to the act of the official in charge who adopted the rule of administrative treatment resulting in forfeiture of right under Directive No. 402 and performed administrative affairs according to this rule. The said judgment, while rejecting the plaintiffs' allegation that they suffered property damage equivalent to the amount of payment of health management allowance that they allegedly should have received, upheld their claim to seek compensation for non-pecuniary damage to the extent of one million yen per person, on the grounds that the plaintiffs were forced to feel disappointment and anger, a sense of being discriminated, and dissatisfaction due to the rule of administrative treatment resulting in forfeiture of right under Directive No. 402 and the performance of administrative affairs according to this rule, and such mental distress or non-pecuniary damage beyond the socially acceptable level deserves legal protection. The majority opinion does not find it impossible to affirm such determination of the judgment of prior instance.
In general, an act cannot be deemed to be illegal under tort law unless it infringes any legally protected interest, and even if an act committed by the State or its official in charge has hurt a person's feelings, it is appropriate to construe that such person cannot immediately claim damages by alleging that his/her interest has been infringed thereby (See 1982 (O) No. 902, judgment of the Grand Bench of the Supreme Court of June 1, 1988, Minshu Vol. 42, No. 5, at 277; and 2005 (Ju) No. 2184, judgment of the Second Petty Bench of the Supreme Court of June 23, 2006, Saibanshu Minji No. 220, at 573).
On the other hand, there is a judicial precedent ruling that, with regard to the application procedure for recognition as a Minamata disease patient, the interest of protecting applicants' inner peace of mind from the delay of obtaining recognition could be subject matter to be protected under tort law (See 1986 (O) No. 329, 330, judgment of the Second Petty Bench of the Supreme Court of April 26, 1991, Minshu Vol. 45, No. 4, at 653). However, this judgment addressed the prolonged delay in obtaining recognition as a Minamata disease patient experienced by those who actually applied for recognition, and it did not grant such legal interest to those who did not actually file applications.
In this case, some plaintiffs received atomic bomb survivor's healthcare certificates and obtained recognition of eligibility for payment of health management allowance, whereas others did not apply for recognition of eligibility for payment of health management allowance or did not even apply for atomic bomb survivor's healthcare certificates. The judgment of prior instance determined that none of the plaintiffs suffered property damage equivalent to the amount of health management allowance. In this context, although even the plaintiffs' principal claim to seek compensation for property damage cannot be legally upheld, can we still find infringement of any interest that deserves legal protection only by reason that they suffered mental distress caused by the same administrative act? Among others, some plaintiffs had never applied for recognition of eligibility for payment of health management allowance or atomic bomb survivor's healthcare certificates until 2003, and it is natural that those who did not actually perform the application procedure to receive health management allowance cannot be deemed to have suffered any damage equivalent to the amount of such allowance (see page 178 of the judgment of prior instance). Assuming so, it is difficult to find that these plaintiffs suffered any non-pecuniary damage that deserves legal protection only because they were unable to receive allowance.
It is obvious from its contents that Directive No. 402 was basically applicable to people residing in foreign states in general, including Japanese nationals, and it was not intended to be applied only to the plaintiffs and other atomic bomb survivors residing in South Korea and to treat them in a discriminatory manner. The official in charge prepared and issued Directive No. 402 based on the construction that he/she adopted as an official taking charge of the Three Acts for Atomic Bomb Survivor, and continued the administrative treatment resulting in forfeiture of right under this directive, and subsequently, when a question was raised as to the said construction at court and different judicial rulings were given to the question, the official in charge changed the practice following the high court's ruling. In the series of measures taken by the official in charge, I do not find anything that can be deemed to have caused particular mental distress to the plaintiffs.
After all, the judgment of prior instance is also erroneous in that it regarded the plaintiffs' feelings, such as a sense of being discriminated and dissatisfaction, as non-pecuniary damage that deserves legal protection, and therefore it cannot be affirmed.
Presiding Judge
Justice WAKUI Norio
Justice KAINAKA Tatsuo
Justice IZUMI Tokuji
Justice SAIGUCHI Chiharu
(This translation is provisional and subject to revision.)