Judgments of the Supreme Court

Search Results

2007 (Gyo-Tsu) 260

Date of the judgment (decision)

2010.01.20

Case Number

2007 (Gyo-Tsu) 260

Reporter

Minshu Vol. 64, No. 1

Title

Judgment concerning the case wherein the court ruled that the act of a city to offer the city-owned lands to a joint neighborhood association for the use as the site of a Shinto shrine facility without compensation is in violation of Article 89 and the second sentence of Article 20, paragraph (1) of the Constitution

Case name

Case to seek a declaration of the illegality of the omission of administration of property

Result

Judgment of the Grand Bench, quashed and remanded

Court of the Prior Instance

Sapporo High Court, Judgment of June 26, 2007

Summary of the judgment (decision)

1. Where the city offers the city-owned lands to a joint neighborhood association without compensation for the use as the site of a building (which is used as a local meeting hall, etc. but has a hokora [a small shrine] installed therein and has a jinja [Shinto shrine] sign posted on its exterior wall), a torii [a gateway to a Shinto shrine] and a jishingu [a stone monument signifying the deity to protect the local area], given the factual circumstances mentioned in (1) and (2) below, it is inevitable that such act of the city is evaluated from the public's point of view to show that the city offers a special benefit to a specific religion and assists it even when it is taken into consideration that said act initially started from a purpose that is secularized or oriented to the public interest, i.e. to reward the local inhabitant who cooperated with the expansion of the site of an elementary school, and therefore said act is in violation of Article 89 and the second sentence of Article 20, paragraph (1) of the Constitution:
(1) the property mentioned above---from the torii, the jishingu, and the hall entrance with a "jinja (Shinto shrine)" sign through to the hokora--- collectively constitutes a facility of a Shinto shrine, and the events held there are conducted in line with such nature of the facility as religious rites; and
(2) the ujiko group (a group of parishioners) which manages said property and performs festivals, without paying any consideration that should have usually been required for installing said property except that it pays the joint neighborhood association a consideration for the use of the building on the occasion of festivals, has enjoyed the benefit arising from the installation of said property continuously for a long period of time, and said act of the city, as its direct effect, makes it easy for the ujiko group, which is a religious organization, to carry out religious activities using the Shinto shrine.

2. In an inhabitants' suit in which inhabitants of a city allege that the act of the city to offer the city-owned lands to a joint neighborhood association for the use as the site of a Shinto shrine facility without compensation is in violation of the constitutional principle of separation of state and religion, and the city mayor's failure to request the removal of said facility and vacation of the lands constitutes an illegal omission of administration of property, and based on these allegations, the inhabitants seek a declaration of the illegality of such omission, when said act of the city is judged to be illegal, given the factual circumstances mentioned in (1) to (3) below, the determination of the court of prior instance finding said omission to be illegal contains violation of law in that the court of prior instance made such determination without examining and judging whether or not there is any rational and realistic alternative means to rectify such unconstitutionality or exercising its authority to ask for explanation from the parties:
(1) if the city mayor has the Shinto shrine facility removed immediately, it would make it extremely difficult for the ujiko group to carry out religious activities using said facility, thereby seriously injuring the freedom of religion of the members of the ujiko group;
(2) It is evident that in addition to requesting the removal of the Shinto shrine facility and vacation of the lands, there can be an alternative means to rectify the unconstitutionality of said act of the city, such as grant, transfer for value, or lease at a fair market value of the lands, irrespective of whether or not the parties allege such alternatives;
(3) the court of prior instance, in the process of trying another case of an inhabitants' suit in which the parties are almost the same as this case, had official knowledge of the likelihood that there exist alternative means to rectify the unconstitutionality of said act of the city and the city mayor may take such means.
(There are concurring opinions, opinions, and dissenting opinions concerning 1 and 2)

References

(Concerning 1) Article 20, paragraph (1) and Article 89 of the Constitution; (Concerning 2) Article 149, paragraph (1) and paragraph (2) of the Code of Civil Procedure, Article 242-2, paragraph (1), item (iii) of the Local Autonomy Act

Article 20, paragraph (1) of the Constitution
Freedom of religion is guaranteed to all. No religious organization shall receive any privileges from the State, nor exercise any political authority.

Article 89 of the Constitution
No public money or other property shall be expended or appropriated for the use, benefit or maintenance of any religious institution or association, or for any charitable, educational or benevolent enterprises not under the control of public authority.

Article 149, paragraph (1) and paragraph (2) of the Code of Civil Procedure
(1) The presiding judge, on the date for oral argument or a date other than that date, in order to clarify the matters related to the suit, may ask questions of a party or encourage him/her to show proof with regard to factual or legal matters
(2) An associate judge, after notifying the presiding judge, may take the measures prescribed in the preceding paragraph.

Article 242-2, paragraph (1), item (iii) of the Local Autonomy Act
(1) Any inhabitant of an ordinary local public entity who has made a request under the provision of paragraph (1) of the preceding Article may make any of the claims listed in the following items, by filing an action with the court, with regard to the illegal act or omission pertaining to the request made under the provision of paragraph (1) of said Article, if the inhabitant is dissatisfied with the results of the audit or the recommendation made by an audit commissioner(s) under the provision of paragraph (4) of said Article, or with the measures taken by the assembly, the head or any other executive agency, or an officer of the ordinary local public entity under the provision of paragraph (9) of said Article, or if the audit commissioner(s) fails to make an audit or recommendation under the provision of paragraph (4) of said Article within the period set forth in paragraph (5) of said Article, or the assembly, the head or any other executive agency, or an officer of the ordinary local public entity fails to take measures under the provision of paragraph (9) of said Article:
(iii) a claim against the relevant executive agency or officer to seek a declaration of illegality of the relevant omission.

Main text of the judgment (decision)

The judgment in prior instance is quashed.
This case is remanded to the Sapporo High Court.

Reasons

I. Outline of the case
1. In this case, the appellees of final appeal, who are inhabitants of Sunagawa City (hereinafter referred to as the "City"), allege that it is in violation of the constitutional principle of separation of state and religion for the City to offer the lands in its ownership for the use as the site of a Shinto shrine facility without compensation, and that the failure of the appellant of final appeal to cancel the contract of loan for use of the site and request the removal of said facility and vacation of the lands constitutes an illegal omission of administration of property, and based on these allegations, they sued the appellant, seeking a declaration of the illegality of such omission under Article 242-2, paragraph (1), item (iii) of the Local Autonomy Act.
2. The outline of the facts determined by the court of prior instance is as follows.
(1) The present ownership, etc. for the Shinto shrine facility
The City owns the lands indicated in the list of real property, Attachment 1 of the judgment in first instance (hereinafter referred to as the "Lands;" when the lands indicated in said list are mentioned individually, they shall be referred to with the numbers assigned thereto, such as "Land 1" and the like; provided, however, that they shall be simply referred to as the "land(s)" when it is evident from the context that they refer to the "Land(s)"; hereinafter the same rule of indication shall apply).
As indicated in Attachments 2 and 3 of the judgment in first instance, on the Lands stands S Hall, which is used as a local meeting hall, etc. (hereinafter referred to as the "Building"), and a hokora [a small shrine] of S Shrine (S Shrine shall hereinafter be referred to as the "Shrine") is installed in a space within the Building and a "jinja [Shinto shrine]" sign is posted on the exterior wall of the Building. A torii [a gateway to a Shinto shrine] and a jishingu [a stone monument signifying the deity to protect the local area] are installed on Land 1 (hereinafter said hokora, etc. shall be referred to as the "Hokora," the "Indication of 'Jinja' (Shinto shrine)," the "Torii," and the "Jishingu," respectively, and also referred to as the "Shrine's Property" collectively).
The owner of the Building and the Shrine's Property is the S Joint Neighborhood Association (hereinafter referred to as the "Neighborhood Association"). The City offers the Lands to the Neighborhood Association without compensation for the use as the site of the Building, the Torii, and the Jishingu (hereinafter the City's act of offering the Lands without compensation to be used for the Shrine's Property shall be referred to as the "Act of Offering Lands for Use").
(2) The shape and layout of the Shrine's Property
The Torii is installed on the part of Land 1, which faces national road Route No. 12. It is a Shinmei torii with a solid structure (approx. 4.5 meters in width) placed on the footstones, and a framed plate indicating "S Jinja (S Shrine)" is posted on the upper part of its front. The Building, in addition to its entrance for the hall, has another entrance with a "Jinja (Shinto shrine)" sign on its side in front of the Torii, and when entering the building through this entrance, there is a Hokora at the front. By the Torii, there is a Jishingu, a stone monument on which the word "Jishingu" is engraved. The Torii, the entrance to the Jinja (Shinto shrine), and the Hokora are arranged in a straight line, and inside the Hokora, there is a mirror as the object of worship in which Amaterasu-omikami [a sun goddess] is believed to reside.
(3) The present status of the management, etc. of the Shrine
(a) The Shrine is managed and operated not by a religious corporation under the Religious Corporation Act but by a group of parishioners called ujiko who are people living near the shrine (hereinafter referred to as the "Ujiko Group"). The Ujiko Group has 10 representatives called sodai and 10 caretakers, collects contributions on the occasion of festivals, and manages its account separately from the account of the Neighborhood Association. However, since the Ujiko Group has no rules, etc. concerning its organization and it is impossible to clearly define the scope of ujiko as its members, the Ujiko Group cannot be regarded as an association without legal capacity (for this reason, in legal terms, the Shrine's Property is deemed to also be in the ownership of the Neighborhood Association).
(b) The Neighborhood Association is a community group organized by six neighborhood associations within S District. The Ujiko Group is subsumed in the Neighborhood Association, and the operational committee organized by the members of these neighborhood associations is in charge of management and operation of the Building. Inside the meeting room, which occupies the main part of the building, there are desks, chairs, blackboards, a karaoke machine, etc., and this room is usually used for an after-school study center, etc. for a charge.
The Neighborhood Association and the Ujiko Group do not pay any consideration to the City for holding and/or using the Shine's Property on the Lands or in the Building. For the use of the building by the Ujiko Group, its representatives called ujiko-sodai pay the Neighborhood Association a charge of 60,000 yen per year (the case records suggest that this 60,000 yen is paid as a consideration for the use of the building on the occasion of festivals, described in (c) below).
(c) The Shrine performs festivals three times every year, namely, hatsumode [the practice of visiting a Shinto shrine to pray at the beginning of the New Year], spring festival, and autumn festival. On the occasion of hatsumode, it sells omikuji [fortunes by lot], talismans for traffic safety, and other goods that are provided by X Shrine, and dedicates the proceeds from such sale as well as the unsold omikuji, etc. to X Shrine. On the occasion of spring and autumn festivals, the Shrine accepts guji [Shinto priests] dispatched from X Shrine, and banners on which are written the words meaning "S Shrine," "jishingu" and the like are hoisted at both sides of the Torii. On the occasion of an autumn festival, banners on which are written the words meaning "Dedicated to Jishingu by Ujiko" and the like are hoisted at both sides of the Jishingu and Shinto ceremonies are held, and signboards on which are written the words meaning "Upon the Autumn Festival, Dedicated to S Shrine" and the like are displayed within the community area. On the occasion of the festival of X Shrine held in August every year, the mikoshi [a portable shrine] of X Shrine is brought to the Shrine, and in the past, miko [shrine maidens] used to perform ritual dances.
(4) History of the Shrine
(a) In around 1892, inhabitants of S District built a hokora near the present location of S Elementary School run by the City (hereinafter referred to the "Elementary School"), praying for good harvest. Subsequently, in 1897, local inhabitants, who wished to erect a Shinto shrine, applied to the Government of Hokkaido Prefecture for the lease of the land of 3,120 tsubo (approx. 10,311 square meters) near the location of said school and were granted permission, and built a facility of a Shinto shrine on said land. In September 1897, a divided spirit of Amaterasu-omikami was enshrined at said facility and a ceremony of enshrinement was held, and the S Youth Association consisting of local inhabitants took charge of the maintenance and management of the facility as volunteers.
(b) In 1903, the Elementary School was constructed adjacent to said facility (the name of the school of that time was B-gun C Elementary School). In around 1948, a plan to construct an extension of the school building and newly construct a gymnasium was drawn up and a decision was made to use, as the site for new construction, said land adjacent to the site of the school, which gave rise to the need to relocate the facility of the Shinto shrine from said land. On this occasion, D, who is an inhabitant of S District, in order to cooperate with the plan, offered Lands 1 and 4 that he/she owned as the site for the relocation of said facility. Around that time, said facility was relocated to said lands, and the Jishingu was built on said lands by September 15, 1950.
(c) In 1953, in an attempt of avoiding the burden of fixed asset tax imposed on Lands 1 and 4, D made an offer to Sunagawa Town (reorganized as a city in July 1958; hereinafter referred to as the "Town") to donate said lands. At its assembly session held in March 1953, the Town adopted a resolution to accept the donation of said lands and to offer them to be used for the facility, including the Hokora, without compensation. On March 29, the Town acquired ownership for said lands through the donation from D.
(d) The Neighborhood Association (its name at that time was S Hamlet Federation), in 1970, constructed the Building on the Lands as a local meeting hall, with subsidies received from the City. Following this, the Neighborhood Association leased Land 3 in addition to Lands 1 and 4 from the City (Land 3 was donated from E and other local inhabitants to the City in September 1970), and also leased Lands 2 and 5 from the Hokkaido Land Improvement District Corporation (hereinafter referred to as the "Land Improvement District Corporation") for the use as the site of the Building without compensation. Upon the construction of the building, the former facilities of the Shrine on Lands 1 and 4 were pulled down except for the Hokora and the Jishingu; the Hokora was relocated to a space within the building, and the Torii was newly installed on Land 1 (the former torii seems to have been pulled down).
(e) In 1994, the City purchased Lands 2 and 5 at the price of 5,002,321 yen and 1,438,296 yen, respectively, from the Land Improvement District Corporation.
(f) Through the process described above, all of the Lands have come under the ownership of the City, and at present, they are offered as the site of the Building, the Torii, and the Jishingu without compensation.
3. Given the facts mentioned above, the court of prior instance ruled that the appellees' claim should be upheld to the extent that they seek a declaration of the illegality of the appellant's omission to request the Neighborhood Association to remove the Shrine's Property. The court of prior instance held as follows.
(1) The Shrine's Property and the Building clearly have the nature of a religious facility. The Act of Offering Lands for Use shows that the City intentionally has a special connection only with a specific religious organization and it gives an impression to the public to the effect that the City offers a special benefit to a specific religion. In this respect, said act goes beyond the limit that is deemed to be reasonable in light of the social and cultural conditions of our country and it constitutes a religious activity as set forth in Article 20, paragraph (3) of the Constitution and therefore violates said paragraph, and it is obviously contrary to the spirit of the principle of separation of state and religion under the second sentence of Article 20, paragraph (1) and Article 89 of the Constitution.
(2) The appellees argue that it is illegal for the appellant to fail to cancel the contract of loan for use pertaining to the Act of Offering Lands for Use and request the removal of the Building and the Shrine's Property and vacation of the lands. Since the unconstitutional condition as described above can be corrected by having the Shrine's Property removed, without canceling said contract, it is not necessary to go so far as to cancel said contract. However, the City's failure to request the Neighborhood Association to remove said property constitutes an illegal omission of administration of Lands 1 and 2.

II. Concerning the reasons for final appeal argued by the appeal counsels, NIIKAWA Ikuma and ASAKURA Yasushi
The appeal counsels argue that the Act of Offering Lands for Use is not in violation of the constitutional clauses providing for the principle of separation of state and religion, on the grounds such as that the religious nature of the Shrine's Property is weak and that it was not based on a religious purpose that the Town or the City acquired Lands 1 and 2. However, the Act of Offering Lands for Use is in violation of Article 89 of the Constitution and therefore in violation of the second sentence of Article 20, paragraph (1) of the Constitution, and the appeal counsels' arguments cannot be accepted. The reasons for this conclusion are as follows.
1. Framework for constitutional judgment
Article 89 of the Constitution provides that no public property shall be appropriated for the use, benefit or maintenance of any religious institution or association. The purport of this provision is to ensure thorough enforcement of the principle of separation of state and religion, which requires the state to be religiously neutral, in various aspects relating to public finance such as appropriating public property for use, etc., and thereby aiming to ensure prohibition of the vesting of privileges to any religious organization as prescribed in the second sentence of Article 20, paragraph (1) of the Constitution in the aspects relating to public finance, and further secure guarantee of freedom of religion. However, the state may have various types of connections with religion, and it is not that the state or a local public entity is prohibited from having any connection with religion at all. Article 89 of the Constitution can be construed to prohibit the state's or local public entity's connection with religion in cases where its connection with religion in terms of appropriating public property for use, etc. is found to be beyond the limit that is deemed to be reasonable, in light of the social and cultural conditions of our country, in relation to the fundamental purpose of the system of securing guarantee of freedom of religion.
The act of the state or a local public entity to offer national or public land for the use as a site of a religious facility without compensation should be, in general, deemed to constitute offering of a benefit to the religious organization, etc. which has established said religious facility, and it raises a conflict with Article 89 of the Constitution. Of course, when national or public land is offered for the use as the site of a religious facility without compensation, it can be easily imagined that the nature and history of the facility, the circumstances leading to the offering without compensation, the manner of using the land, etc. would vary. For instance, a facility that has the nature of a religious facility in general terms can be, at the same time, protected as historic or cultural property. Such facility often has other meanings as tourist resources, means of promoting international goodwill, places where local residents cultivate mutual friendship, and so forth, and there may be cases where such facility is installed on national or public land, while focusing on such cultural or social value or meanings. Furthermore, in Japan, as a result of the measures whereby the state, etc., under requisition order, confiscated some of the estate of temples and Shinto shrines and incorporated it into government-owned land, or accepted such estate as donations, which had been taken since the beginning of the Meiji era, it frequently happened that national or public land was offered to be used as the sites of temples, Shinto shrines, etc. without compensation. To deal with such case, after the war, the "Act on Disposition of National Property Leased to Temples, Shinto Shrines, etc. Without Compensation" (Act No. 53 of 1947) was promulgated with regard to national land, and a directive was issued by the Vice-Minister of Home Affairs and the Vice-Minister of Education to the effect that public land should be granted or otherwise disposed of as in the case under said Act, and even after the period for applying for grant under said Act and directive expired, measures such as grant, selling off, lease, etc. were taken. In spite of this, it seems that there remains a considerable amount of national or public land that is still being used as the sites of temples, Shinto shrines, etc., due to the difficulty in taking such measures. These circumstances may have an influence on whether or not the act of offering the land for use in question is evaluated from the public's point of view to serve as assistance or the like for a specific religion, and therefore in the process of examining the relation with the principle of separation of state and religion, said circumstances should be taken into consideration as an important factor.
Assuming so, when judging whether or not the condition where national or public land is offered for the use as the site of a religious facility without compensation is, from the aforementioned standpoint, beyond the limit that is deemed to be reasonable in relation to the fundamental purpose of the system of securing guarantee of freedom of religion, and in violation of Article 89 of the Constitution, it is appropriate to construe that judgment should be made comprehensively in light of the socially accepted ideas, while taking into consideration various factors, including the nature of the religious facility in question, the circumstances where the land in question has been offered for the use as the site of the relevant facility without compensation, the manner of offering without compensation, and the public's evaluation of such practice.
The reasoning shown above is obvious from the purport of the precedents of this court (1971 (Gyo-Tsu) No. 69, judgment of the Grand Bench of the Supreme Court of July 13, 1977, Minshu Vol. 31, No. 4, at 533, 1992 (Gyo-Tsu) No. 156, judgment of the Grand Bench of the Supreme Court of April 2, 1997, Minshu Vol. 51, No. 4, at 1673, etc.)
2. Constitutionality of the Act of Offering Lands for Use
(1) According to the facts mentioned above, there is no choice but to regard the Shrine's Property ---from the Torii, the Jishingu, and the hall entrance with a "Jinja (Shinto shrine)" sign through to the Hokora---as collectively constituting a facility of a Shinto shrine.
With regard to the various events held at the Shrine, they may have meanings in, e.g. promoting mutual friendship, as traditional events of the community, but in view of the manner in which they are conducted in accordance with the formality of Shintoism, they cannot be deemed to be mere secular events whose religious meaning is weak.
Thus, it can be said that the Shrine's Property is a facility for Shrine-centered Shinto, a religious organization centering on a Shinto shrine, and the events held at the Shrine are conducted in line with such nature of the facility.
(2) The entity which manages the Shrine's Property and performs the aforementioned festivals is the Ujiko Group, not the Neighborhood Association to which the Act of Offering Lands for Use is directly addressed. The Ujiko Group is, as mentioned above, an organization subsumed in the Neighborhood Association, but it can be found to be in existence in society separately from the Neighborhood Association. The Ujiko Group is a religious organization whose main purpose is to perform religious rites, etc., and it actually performs religious festivals of the Shrine while collecting contributions, and in this respect, it can be construed to fall within the category of "religious institution or association" as set forth in Article 89 of the Constitution.
However, the Ujiko Group, without paying any consideration that should have usually been required for installing the Shrine's Property except that it pays the Neighborhood Association a consideration for the use of the Building on the occasion of festivals, has enjoyed the benefit arising from the installation of said property. In other words, it can be said that the Act of Offering Lands for Use, as its direct effect, makes it easy for the Ujiko Group to carry out religious activities using the Shrine.
(3) Assuming so, we have no choice but to say that the Act of Offering Lands for Use is an act by which the City permits a religious facility to be installed on the Lands without receiving any consideration therefor and makes it easy for the Ujiko Group to carry out religious activities using such facility, and it is unavoidable that said act is evaluated from the public's point of view to show that the City offers a special benefit to a specific religion and assists it. According to the facts mentioned above, the Act of Offering Lands for Use seems to have initially started from a purpose that is secularized or oriented to the public interest, that is, to reward the local inhabitant who cooperated with the expansion of the site of the elementary school, and it was not based on the purpose of giving special protection or assistance to the Shrine. However, in view of factors such as the nature of the Shrine's Property, which should clearly be regarded as nothing but a religious facility, and the specific manner of the Act of Offering Lands for Use, in which the City has been giving benefits to the Shrine continuously for a long period of time, in this case, the initial motive or purpose of said act does not affect the evaluation shown above.
(4) Taking into consideration the factors described above and making judgment comprehensively in light of the socially accepted ideas, it is appropriate to construe that the Act of Offering Lands for Use shows that the connection between the City and the Shrine or Shintoism goes beyond the limit that is deemed to be reasonable, in light of the social and cultural conditions of our country, in relation to the fundamental purpose of the system of securing guarantee of freedom of religion, and it constitutes an act of appropriating public property for use prohibited under Article 89 of the Constitution, and consequently, said act also constitutes the vesting of privileges to any religious organization prohibited under the second sentence of Article 20, paragraph (1) of the Constitution.

III. Review by this court's own authority
1. In this case, which is an inhabitants' suit filed by the appellees under Article 242-2, paragraph (1), item (iii) of the Local Autonomy Act, the appellees allege that it is illegal in the aspect of administration of property for the City, with regard to the Lands which are in the condition that inevitably raises a problem in relation to the principle of separation of state and religion as explained above, to fail to cancel the contract of loan for use and request the removal of the Shinto shrine facility as a measure to rectify such condition.
2. As already explained above, the Act of Offering Lands for Use is currently in an unconstitutional condition. However, the reason why we find said act to be unconstitutional is that the City has been offering the lands to the Ujiko Group, which conducts certain events using the facility described as above, for a long period of time without compensation, and in order to rectify such unconstitutional condition, there may be an appropriate means other than to have the Shinto shrine facility removed and the lands vacated. For instance, similar to the disposition, etc. taken after the war with regard to the precincts of many temples and Shinto shrines that had been made national or public land before the war, the aforementioned unconstitutionality can be rectified by methods such as grant, transfer for value, or lease at a fair market value of Lands 1 and 2 in whole or in part. The appellant is construed to have discretionary power to choose a method that is deemed to be reasonable, while taking into consideration various factors, including the present conditions of the Lands, the Building, and the Shrine's Property, the impact on the users that may arise from the measures to be taken to rectify the unconstitutionality, the intentions of the parties concerned, and the difficulty of taking said measures. The circumstances leading to the Act of Offering Lands for Use cannot be considered to be circumstances because of which the unconstitutionality of said act can be denied, but they should be fully taken into consideration when choosing a means to rectify the unconstitutionality. Taking into consideration factors such as the circumstances where the Act of Offering Lands for Use started and the fact that the Ujiko Group has performed festivals using the Shrine's Property in a very peaceful manner, it is evident that if the appellant takes a direct means and has the Shrine's Property removed immediately, it would not only undermine the trust in the Neighborhood Association which leases the lands on condition of using them as the site of the Shinto shrine but also would make it extremely difficult to carry out the religious activities which have been protected and inherited by local inhabitants, thereby seriously injuring the freedom of religion of the members of the Ujiko Group. In addition, some of the alternative means indicated above may require a resolution of the city assembly, and consideration should also be given to whether or not such resolution is likely to be legally obtained. If, in light of these circumstances, there exists any rational and realistic alternative means that the appellant can choose, the appellant's failure to take a measure of requesting the removal of the Shrine's Property and vacation of the lands is not immediately judged to be illegal in the aspect of administration of property. To put it the other way around, it is appropriate to construe that the appellant's failure to request the removal of the property and vacation of the lands is judged to be illegal only in cases where such failure is judged to be beyond the bounds of the appellant's discretionary power in the administration of property or to constitute an abuse of such power even when it is taken into consideration that there exist such alternative means.
3. In this case, neither party has made any allegation from the aforementioned perspective as to whether or not there exist alternative means that can be taken to rectify the unconstitutionality of the Act of Offering Lands for Use, nor is there any evidence to suggest that the court of prior instance has exercised its authority to ask for explanation from the parties with regard to whether or not there exist such alternative means. However, the existence of alternative means to rectify the unconstitutionality of the Act of Offering Lands for Use is clear, irrespective of whether or not the parties allege such alternatives. Furthermore, while handling this Case, the court of prior instance was also trying another case of an inhabitants' suit involving another Shinto shrine (T Shrine) located in the City, in which the parties are almost the same as this case. In said other case, the point in dispute was the constitutionality of the measure taken by the City in order to rectify the condition where the Shinto shrine facility exists on the city-owned land, i.e. granting the city-owned land, which had been offered to the neighborhood association for the use as the site of the Shinto shrine without compensation. Both the court of first instance and the court of second instance found said measure to be constitutional, and this court also finds it constitutional (2007 (Gyo-Tsu) No. 334 of the Supreme Court). Through the trial of such other case, the court of prior instance had official knowledge of the likelihood that there exist such alternative means in this case as well and that the appellant may take such means.
In consequence, as far as the court of prior instance judged the appellant's omission to request the removal of the Shrine's Property and vacation of the lands to be illegal, the court of prior instance should have appropriately examined and judged whether or not there exists any rational and realistic alternative means to rectify the unconstitutionality of the Act of Offering Lands for Use, or exercised its authority to ask for explanation from the parties. Nevertheless, the court of prior instance judged said omission to be illegal without making any examination or judgment on this point or exercising its authority to ask for explanation, and in this respect, we should say that as a result of its failure to fully examine the legality of said omission, the court of prior instance erred in construing and applying laws and regulations or neglected to exercise the authority to ask for explanation, which is in violation of law.

IV. Conclusion
For the reasons stated above, although the determination of the court of prior instance finding the Act of Offering Lands for Use to be unconstitutional can be affirmed, its determination finding the appellant's omission to request the removal of the Shrine's Property to be illegal contains violation of laws and regulations that apparently affects the judgment. Consequently, we quash the judgment in prior instance by this court's own authority, and for further examination as to points including whether or not there exist alternative means to rectify the unconstitutionality of the Act of Offering Lands for Use, we remand this case to the court of prior instance.

Therefore, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices, except that there are dissenting opinions by Justice IMAI Isao and Justice HORIGOME Yukio, respectively. There are also concurring opinions by Justice FUJITA Tokiyasu, Justice TAHARA Mutsuo, and Justice KONDO Takaharu, respectively, and also an opinion by Justice KAINAKA Tatsuo, Justice NAKAGAWA Ryoji, Justice FURUTA Yuki, and Justice TAKEUCHI Yukio.

The concurring opinion by Justice FUJITA Tokiyasu is as follows.
I am in agreement with the majority opinion, but I would like to give some comments on why the Act of Offering Lands for Use is deemed to be in violation of the principle of separation of state and religion.
1. When judging whether or not an act (including an omission) conducted by the state or a public entity in relation to religion is in violation of the principle of separation of state and religion provided for in the Constitution of Japan, this court, in its past judgments, adopted the criteria for judicial review generally called a purpose-effect test, and this fact cannot be ignored in this case. However, concerning whether or not it is appropriate to adopt this test and how this test should be applied, oppositions to this court's precedents have been deeply rooted in academic views, and dissenting opinions have also been presented in this court's precedents more than once. Taking account of such facts, careful review should be made anew as to how this issue should be considered at the present time.
As is generally known, criticisms to the application of this test can be found in the dissenting opinion by five justices attached to the judgment on the Tsu Jichinsai Case [the case on the Shinto-style ceremony for sanctifying the ground held in Tsu City] (1971 (Gyo-Tsu) No. 69, judgment of the Grand Bench of the Supreme Court of July 13, 1977, Minshu Vol. 31, No. 4, at 533), and also in the respective opinions by Justice Takahashi and Justice Ozaki attached to the judgment on the Ehime Tamagushiryo Case [the case on the payment of cash offerings for Yasukuni Shrine by the governor of Ehime Prefecture] (1992 (Gyo-Tsu) No. 156, judgment of the Grand Bench of the Supreme Court of April 2, 1997, Minshu Vol. 51, No. 4, at 1673). In particular, Justice Ozaki pointed out as follows: if the view on which the majority opinion of the Tsu Jichinsai Judgment based itself when considering the purport of the provisions on separation of state and religion under the Constitution of Japan, i.e. "the present Constitution has newly provided for the unconditional guarantee of freedom of religion and, in order to further secure such guarantee, established the principle of separation of state and religion…, and when providing for this principle, the Constitution has intended to secure secularity or religious neutrality of the state by regarding complete separation of state and religion as its ideal," is taken as a presupposition, it can be construed that "complete separation of state and religion should be the fundamental rule, with the exception that only in cases where complete separation is impossible and the attitude to adhere to separation would inevitably lead to an unreasonable consequence, the connection of state and religion is constitutionally permitted." I agree with Justice Ozaki because what he pointed out is a rational, logical conclusion. In accordance with the aforementioned purpose-effect test that has been adopted by the majority opinions of the past judgments of this court, the constitutional principle of separation of state and religion "does not prohibit the state from having any connection with religion, but rather, it should be construed as prohibiting the state's connection with religion (only) when such connection goes beyond the limit that is deemed to be reasonable in light of the social and cultural conditions of our country, while taking into consideration the purpose and effects of the act that brings about said connection" (the parenthesized term is a supplement by FUJITA). The majority opinions of the judicial precedents did not give any satisfactory explanation about such method to draw a conclusion by, in a sense, reversing the positions of the principle and its exception. I find Justice Ozaki's view, which criticizes said method as involving a logical leap, to be somewhat convincing.
However, even such opinions disapproving the application of the purpose-effect test do not completely deny the acceptability of an exception to complete separation of state and religion. In addition, it seems to me to be impossible to definitely say that when considering whether or not the relevant case falls under cases where "complete separation is impossible and the attitude to adhere to separation would inevitably lead to an unreasonable consequence," a final judgment can be made without giving any consideration to the purpose or effects of the state's act in dispute. I would say that the question ultimately depends on our basic stance or starting point for evaluating the "state's religious neutrality" in the process of judging whether or not the "state's connection with religion goes beyond the limit that is deemed to be reasonable in light of the social and cultural conditions of our country." Taking this view, even if the aforementioned opinions are considered to be theoretically well-grounded, I cannot find the necessity to go so far as to totally deny the applicability of the purpose-effect test in this case. However, careful consideration is required as to the specific content of the purpose-effect test or how to apply the test, and we must not quote the language of this court's precedents as if it were the absolute rule and draw a conclusion automatically, without fully examining the details of the case. From this standpoint, attention must be paid to the following points in this case.
2. The target of constitutional challenge in this case is the fact that a local public entity simply offers public land for the use as the site of the facility which is, as pointed out by the majority opinion, purely intended for Shintoism and has no particular meaning other than religious meaning. As I see it, in this court's precedents, the phase in which the purpose-effect test was made to function was when the court determined which should be given more importance between "religious nature" and "secular nature" in cases where both natures resided in the act, etc. in question and they were nearly indistinguishable in superiority (for instance, the judgment on the Tsu Jichinsai Case, the judgment on the Minoh Chukonhi Case [the case on a monument of the loyal souls in Minoh City], etc., at least based on the view of the majority opinions, exactly fall under such case). They were not cases where an act that clearly had a religious nature alone was disputed and the purpose of such act was further questioned (for example, if a person or entity makes a visit or donation to a temple or Shinto shrine in a public position, but explains that such act is not a "religious activity" as set forth in the Constitution because said act is derived exclusively from the purpose of praying for the security of the country or safety of the people and is not intended to give preferential treatment for a particular religion, such attitude cannot be permitted at all even in accordance with the aforementioned purpose-effect test. The judgment on the Ehime Tamagushiryo Case can be understood as showing this reasoning.)
In this case, as suggested by the judgment in prior instance and the majority opinion of the judgment in present instance, it is clear that the Shinto shrine facility in question does not have a secular meaning as any particular cultural property, historic remains or the like but exists primarily as a religious facility (a facility for Shintoism), and that the events held there are religious rites (praying for good harvest, etc. is exactly the purpose of a Shinto rite itself, and regarding it as a "secular purpose" is as good as saying that "Shintoism is not a religion."). Therefore, the very fact that the Act of Offering Lands for Use brings about an effect of exclusively benefiting a specific facility and rites that are purely religious (in short, a "Shinto shrine") cannot be denied, and the circumstances in this case are clearly different from those involving the Shinto-style ceremony for sanctifying the ground (Tsu Jichinsai Case), the lease of city-owned land as substitute land for the relocation of the monument of the loyal souls and the city official's attendance at the memorial service (Minoh Chukonhi Case), or the offering of city-owned land for the relocation of a Jizo statue, etc. (Osaka Jizo Statue Case) (in these cases, at least the majority opinions judged the acts in question to be constitutional by denying the purely religious nature in the Shinto-style ceremony for sanctifying the ground, the monument of the loyal souls, the Jizo statue, etc. and finding some secularity in these respective objects). In this sense, the unconstitutionality in this case is already clear even without questioning the applicability of the purpose-effect test.
3. It is true that, according to the facts found by the court of prior instance, the Shrine itself can be clearly considered to be a purely Shinto facility, but on the other hand, in view of the appearance of the facility, the manner in which daily religious activities are held there, etc., said facility does not have so strong a presence as a religious facility, and because of this, the City has maintained the Act of Offering Lands for Use without a particular constitutional doubt, and in reality, it seems that until the appellees raised the issue, other inhabitants of the City had not found any particular problem as to the unconstitutionality of said act. Therefore, if this point is stressed, it cannot be said, at least, that the Act of Offering Lands for Use is so serious to the extent that it would immediately put pressure on or pose a threat to other religions or believers thereof (for example, it is found that all of the members of the Ujiko Group are Buddhists), and a doubt could be raised about whether it is truly necessary to go so far as to challenge the unconstitutionality of said act. It could also be presumed that among quite a few Shinto shrine facilities located on public land, which are thought to exist across the country, a considerable number are in an extremely similar situation to the Shrine. Given this perspective, it should be said that the question peculiar to this case is whether or not a local public entity's act of offering public land for use, addressed to a facility that is primarily intended for a specific religion (in other words, has no "secularity" to be taken into consideration), can necessarily be judged to be in violation of Article 89 of the Constitution even in cases where the presence of such facility in the community is not so strong (or rather weak).
It seems that the situation described above arises largely from factors such as the characteristics of traditional Shintoism, whose dogma is relatively less exclusive, and the characteristics of the Japanese people, whose religious consciousness is relatively weak, but needless to say, the issue of separation of state and religion must be clearly distinguished from the content of the dogma of the religion in question. In addition, it must be said that it is also clear that the number or percentage of citizens who believe in or accept a certain religion must not be linked with the issue of separation of state and religion. When considering the purpose and background of Article 89 of the Constitution which is construed to, while bearing in mind the oppression that other religions experienced in Japan in the past under the policy of State-supported Shinto, a Shinto belief supported and controlled by the state, guarantee separation of state and religion institutionally (or in the form of a system) so as to fulfill guarantee of freedom of religion of individual citizens, the issue of violation of the principle of separation of state and religion provided for in said Article should not necessarily be determined only by the fact as to whether or not freedom of religion of individual citizens is actually being violated by the act in question. The view on the Act of Offering Lands for Use as indicated in the majority opinion, i.e. "it is unavoidable that the Act of Offering Lands for Use is evaluated from the public's point of view to show that the City offers a special benefit to a specific religion and assists it," is considered to be justifiable in this sense.
4. In this case, constitutional challenge is targeted, directly, to the City's omission to remove the facility of the Shrine located on city-owned lands (if the unconstitutionality was alleged with regard to the City's initial act of acquiring the Lands on which said facility exists, it would lead to the consequence that said act itself is void and the Lands cannot be regarded as public land from the beginning; the appellees (the plaintiffs) do not make such allegation). In such case, if there are any special circumstances where such omission cannot be expected to be immediately rectified (such circumstances may include, for example, where the removal of the facility is likely to concurrently cause extremely serious damage to freedom of religion, or where efforts have been made as much as possible toward privatization of the site of the facility but such efforts have not yet been successful due to historical backgrounds or other factors), it could be said that whether or not the unconstitutionality should be recognized immediately because there remains the fact that a Shinto shrine facility actually exists on public land, is an issue that leaves room for discussion. However, in this case, the appellant (the defendant) has not alleged or proved anything about the existence of such special circumstances, but rather it is apparent that the appellant stands on the assumption that the Act of Offering Lands for Use is constitutional, without needing to examine the existence of such circumstances. In this respect, I should say that it is unavoidable that the Act of Offering Lands for Use is judged to be in violation of Article 89 of the Constitution, as indicated by the majority opinion, without needing to question whether or not the court of prior instance has failed to perform the obligation to ask for explanation.

The concurring opinion by Justice TAHARA Mutsuo is as follows.
I am in agreement with the majority opinion, but I would like to give some comments on the constitutional principle of separation of state and religion and the application thereof in this case, as well as the relationship between administrative case litigation proceedings and the adversary system.
1. Constitutional principle of separation of state and religion
Freedom of religion is an essential element of freedom of mind, which is the basis of fundamental human rights, and it is guaranteed by national constitutions as a universal right in modern democratic nations.
The first sentence of Article 20, paragraph (1) of the Constitution of Japan guarantees freedom of religion unconditionally, by providing that "Freedom of religion is guaranteed to all." Following this provision, the second sentence of said paragraph prohibits the state from vesting privileges to any religious organization and also prohibits any religious organization from exercising any political authority, paragraph (2) prohibits compelling any person to take part in any religious activity, etc., and paragraph (3) prohibits the state and its organs from carrying out religious activities. Article 89 of the Constitution stipulates that no public money or other property shall be expended or appropriated for the use of any religious institution or association.
There was the following historical background behind the establishment of the present Constitution, which does not only provide for "guarantee of freedom of religion" but further provides for the prohibition of the exercise of any political authority as well as the prohibition of financial support in relation to religion, thereby stipulating thorough enforcement of the principle of separation of state and religion. While Article 28 of the Constitution of the Empire of Japan guaranteed freedom of religion by providing that "Japanese subjects shall, within limits not prejudicial to peace and order and not antagonistic to their duties as subjects, enjoy freedom of religious belief," Shrine-centered Shinto was given financial support and otherwise treated as a de facto national religion, and a number of religious organizations that were found by the security authorities to be engaged in activities against that policy were subject to strict control and suppression (See the first section of the dissenting opinion by Justice FUJIBAYASHI Ekizo, Justice YOSHIDA Yutaka, Justice DANDO Shigemitsu, Justice HATTORI Takaaki, and Justice TAMAKI Shoichi, attached to 1971 (Gyo-Tsu) No. 69, judgment of the Grand Bench of the Supreme Court of July 13, 1977, Minshu Vol. 31, No. 4, at 533). In view of the respective clauses of the present Constitution regarding freedom of religion mentioned above and the historical background leading to the establishment thereof, the principle of separation of state and religion should basically be applied in a strict manner (see the aforementioned dissenting opinion by Justice FUJIBAYASHI Ekizo and four others attached to said judgment of July 13, 1977, and the respective opinions by Justice TAKAHASHI Hisako and Justice OZAKI Yukinobu, attached to 1992 (Gyo-Tsu) No. 156, judgment of the Grand Bench of the Supreme Court of April 2, 1997, Minshu Vol. 51, No. 4, at 1673).
Even when taking the aforementioned view regarding the application of the principle of separation of state and religion, it goes without saying that there is no need to apply this principle in cases where events, etc. that are commonly held in Japan, such as Hina-matsuri [Girls' Festival], Tanabata-matsuri [Star Festival], and local Bon-odori festivals [Buddhist dance festivals], have religious origins but today have little religious elements, and they are conducted as local customs or regular annual events.
Furthermore, with regard to the connection between the state (including a local public entity; hereinafter referred to as the "state, etc.") and religion, in my opinion, the position of the principle of separation of state and religion necessarily differs between cases where the state, etc. connects itself with religion actively in some ways through acts including participation in religious rites, etc. and provision of financial support to religious organizations, etc., and cases where the state, etc. connects itself with religion only negatively through omission, e.g. not to remove a religious facility, etc. established on the lands or in the establishments owned by the state, etc. due to historical backgrounds, etc.
More specifically, in the former cases, the connection between the state, etc. and religion conspicuously represents the intention of the state, etc., and it may have a direct influence on the people's freedom of mind and also have a significant influence on society; therefore, the principle of separation of state and religion must be applied strictly.
In the latter cases, on the other hand, even if the state, etc. does not remove objects such as statutes of Dosojin [a guardian deity at crossroads or village boundaries], Jizo, etc. standing by the roadside, which have little religious meaning today but remain as customs, or hokora or other similar objects which are installed or managed by unspecified entities, and leaves these objects as they are, it is hard to consider that such treatment would have some influence on society in terms of the relationship between the state, etc. and religion. In addition, as pointed out by the majority opinion, as a result of incorporation of the estate of temples, Shinto shrines, etc. into government-owned land under the Land Requisition Order issued in early Meiji era, etc., national land, etc. was offered for the use as the sites of temples, Shinto shrines, etc. without compensation, but after the war, the "Act on Disposition of National Property Leased to Temples, Shinto Shrines, etc. Without Compensation" (Act No. 53 of 1947; hereinafter referred to as the "Disposition Act") was promulgated with regard to national land, and it was defined that such land shall be granted to temples, Shinto shrines, etc. Then, a directive was issued to the effect that public land should also be granted or otherwise disposed of as in the case under said Act ("Disposition of Property of Local Public Entities Offered for Use by Temples, Shinto Shrines, and Other Religious Organizations" (Directive Issued by the Vice-Minister of Home Affairs and the Vice-Minister of Education to Local Governors, No. 24, dated April 2, 1947)), and such disposition was enforced. Even after the period for applying for disposition, etc. under said Act and directive expired, measures stipulated in said Act or said Directive have actually been taken but there remains a considerable amount of national or public land that is still being used as the sites of temples, Shinto shrines, etc. because no measure under said Act or directive has been taken until today. Given such circumstances, it is inappropriate to construe that the state, etc. violates the principle of separation of state and religion and violates the Constitution only because of the fact that it does not actively try to rectify such condition.
The Lands are not covered by the Disposition Act, as explained in the following section, and moreover, the very act of Sunagawa Town, the predecessor of Sunagawa City, to accept the donation of Lands 1 and 4 while assuming the burden of permitting the use of these lands as the precincts of the hokora, etc., is in violation of the Constitution, and such act of accepting the donation should have been void. In 1970, the City permitted Lands 1 and 4, as well as Land 3 that had been donated thereto by E and other local inhabitants, to be used without compensation as part of the site of the Building, which was newly constructed as a local meeting hall and a structure to accommodate the Hokora. In 1994, the City acquired for value Lands 2 and 5 that had been used as part of the site of the Building, from the Land Improvement District Corporation, and then permitted the continued use thereof as the site of the Building without compensation. Such condition remained until oral argument in prior instance was concluded.
The City's treatment of the Lands as described above should inevitably be evaluated to show that the City actively provided financial support for the Neighborhood Association, in which the Ujiko Group is subsumed, and was continuously providing such support at the time of the conclusion of oral argument in the prior instance, and consequently, said treatment should be judged to be in violation of Article 89 and the second sentence of Article 20, paragraph (1) of the Constitution.
2. Circumstances leading to the City's acquisition of ownership for Lands 1 and 4
According to the findings in the judgment in prior instance and the case records, the Shrine has the following history. Local inhabitants, who wished to erect a Shinto shrine, applied to the Government of Hokkaido Prefecture for the lease of the land of 3,120 tsubo (about 10,311 square meters) near the location of the Elementary School (S Elementary School) and were granted permission, and built a facility of a Shinto shrine on said land. In September 1897, a divided spirit of Amaterasu-omikami was enshrined at said facility and a ceremony of enshrinement was held. The Shrine can be found to have existed in reality as a shrine of Shrine-centered Shinto at that point in time. Furthermore, it was said that the S Youth Association consisting of local inhabitants took charge of the maintenance and management of the facility as volunteers, but the case records do not clearly show how Shinto events were conducted at that time.
The estate of temples, Shinto shrines, etc., including the precincts where they stood, was in principle incorporated into national or public land under the Land Requisition Order, etc. in early Meiji era, as mentioned above. For the purpose of ensuring thorough enforcement of the constitutional principle of separation of state and religion, the aforementioned Disposition Act was promulgated on April 12, 1947, and following the enactment of said Act, the aforementioned directive was issued. In accordance with this directive, the initial site of the Shrine was categorized as "land currently leased to a temple, Shinto shrine, etc. without compensation," falling within the category of "land that should be sold off at half its market value under a negotiated contract," and therefore should have been sold off from its owner, Hokkaido Prefecture, to the management entity of the Shrine of that time (the actual conditions of the management entity of the Shrine of that time are not clear from the case records; however, if the entity existed as a real association without legal capacity, said site would have been sold to that association, and if the entity existed only as a partnership under the Civil Code, it would have been sold to that partnership).
However, said initial site of the Shrine was not sold to the management entity of the Shrine of that time, and in around 1948, on the occasion of construction of the extension of the Elementary School, D offered Lands 1 and 4 that he/she had just acquired through sale under the Act on Special Measures for Establishment of Owner-Farmers in 1947 as the site for the relocation of the Shrine, and the Shrine was relocated to these lands (although the case records do not reveal what kind of contractual relationship existed between the management entity of the Shrine of that time and D with regard to Lands 1 and 4, the relationship between the parties was probably a relationship of loan for use). As a result, the direct relation between the Shrine and Hokkaido Prefecture came to an end, and the relocation gave rise to no relation in legal terms between the Shrine and Sunagawa Town.
In 1953, more than five years after the relocation of the Shrine to Lands 1 and 4 as described above, D, in an attempt of avoiding the burden of fixed asset tax, made an offer to Sunagawa Town to donate said lands, on condition of continuing to use the lands as the precincts of the Shrine (the land category for Lands 1 and 4 had already been changed to "precincts" by that time, but exactly at which point in time such change was made is not clear from the case records). At its assembly session held in March 1953, the Town adopted a resolution to accept the donation of Lands 1 and 4 and to offer them for the use as the precincts of the Shrine without compensation. On March 29, the Town acquired ownership for said lands, thereby permitting the continued use thereof as the site of the Shrine without compensation.
However, fixed asset tax imposed on Lands 1 and 4 should have been paid by their owner, D, and if D wished to be exempted from such economic burden, he/she should have shifted it onto the management entity of the Shrine that used the lands as its site. Sunagawa Town's act of accepting the donation of said lands from D and permitting the continued use thereof as the site of the Shrine without compensation in order to avoid such shifting of burden, should inevitably be deemed to mean that the Town accepted said donation with a view to effectively giving financial support for the management entity of the Shrine, and there is no choice but to judge such act to be in violation of the second sentence of Article 20, paragraph (1) and Article 89 of the Constitution and therefore void.
In order for D to avoid fixed asset tax on Lands 1 and 4, the Shrine should have been authorized as a religious corporation under the Religious Corporation Act (put into effect in April 1951) and D should have donated said lands to that corporation, and through these measures, said lands would have been categorized as precincts and exempted from fixed asset tax (Article 348, paragraph (2), item (ii) of the Local Tax Act that was in effect at that time). The Religious Corporation Act was enacted for the purpose of ensuring transparency of the structure of religious organizations and clarification of their property administration, and at the time when this Act was put into effect, there was a practice that authorization should be given through relatively flexible examination in light of such legislative purpose. Therefore, it can be imagined that the Ujiko Group in charge of managing the Shrine could have chosen to incorporate the Shrine, but the case records do not suggest that such procedure was actually carried out. Furthermore, even if it was difficult to incorporate the Shrine as an independent religious corporation, in order to fulfill the intention of avoiding fixed asset tax on Lands 1 and 4, there was a possible method whereby the Shrine would be made a branch shrine of X Shrine, which is a religious corporation and is found to maintain a close relationship with the Ujiko Group of the Shrine, and D would donate said lands to X Shinto as its precincts. Thus, even though there was a legitimate alternative procedure available to D for avoiding the burden of fixed asset tax on Lands 1 and 4, such procedure was not carried out at all, and Sunagawa Town accepted D's donation of said lands as the precincts of the Shrine. Such act of the Town is obviously in violation of the constitutional principle of separation of state and religion and by no means acceptable. Although the Town's acceptance of the donation of Lands 1 and 4 should inevitably be considered to be void as explained above, more than 50 years have passed after the acceptance, and during this period, there has been no dispute over the ownership of said lands. Under such circumstances, if the parties concerned allege voidance of the acceptance of the donation at this time, such attitude is impermissible under the principle of good faith, and what is more, it is obviously possible for the City to allege acquisition by prescription. Therefore, whether or not the acceptance of the donation of said lands is valid does not have a direct influence on the conclusion in relation to the appellees' claim.
However, the circumstances where the City acquired ownership for said lands are one of the factors to be taken into consideration when exercising its discretionary power as suggested by the majority opinion with regard to how to rectify the "omission of administration of property" which is in dispute in this case.
3. Relationship between administrative case litigation proceedings and the adversary system
The adversary system is generally construed to be applicable to administrative case litigation as well (See Article 7 of the Administrative Case Litigation Act). However, the Administrative Case Litigation Act also includes a clause providing for examination of evidence by courts' own authority (Article 24 of said Act; said Article shall apply mutatis mutandis to an inhabitants' suit pursuant to Article 43, paragraph (3) and Article 41, paragraph (1) of said Act). That clause is construed to have been established as a complement for the adversary system, so as to deal with cases where it is difficult for the court to make an appropriate determination if it only relies on the adversary system due to the characteristics of administrative case litigation, the outcome of which has a considerable impact on public interest (e.g. a judgment of administrative case litigation is effective against any third party). In cases where it is obvious that the trial court should examine evidence by its own authority due to the course of proceedings, etc., if such examination is not made and this seems to affect a judgment of the case, the trial should inevitably be found to be illegal due to insufficient examination.
Such view on examination of evidence by courts' own authority that is regarded as an exception to the adversary system may apply to the burden of allegation as well, although there is no direct provision of law to that effect. More specifically, administrative case litigation has, as explained above, characteristic that its outcome has a considerable impact widely on public interest (e.g. a judgment of administrative case litigation is effective against any third party). In particular, suits, such as some kinds of appeal suits in which the outcome as to whether the administrative disposition in dispute is revoked or maintained may have a direct or indirect influence on the interest of many interested parties, and inhabitants' suits in which the outcome widely affects the interest of all inhabitants in the area concerned, have conspicuous relevance with public interest. In these suits, if either party fails to allege a fact that should have necessarily been alleged thereby in light of the nature of the case, and such lack of allegations may affect a judgment, the court is considered to be responsible for actively asking for explanation from the parties. In cases where it is obvious that the trial court should ask for explanation due to the course of proceedings, etc., if the court fails to exercise its authority to ask for explanation and such failure is likely to affect a judgment, the trial should inevitably be found to be illegal due to insufficient examination, as in the case of the lack of examination of evidence by courts' own authority explained above.
As for a suit to "seek a declaration of the illegality of the omission of administration of property" under Article 242-2, paragraph (1), item (iii) of the Local Autonomy Act, there are two types of cases, i.e. where there is a sole and obvious means to rectify the illegality of the omission, and where there are various possible methods and it is left to the administrative agency's discretion to choose which method to take. It is construed that in the latter case, the plaintiff is not allowed to make a claim to seek an abstract declaration that "the omission of administration of property is illegal," but needs to specifically identify the "illegal omission." In such suit, trial is focused on the "illegal omission" alleged by the plaintiff and the illegality of the administrative agency's exercise of its discretionary power in choosing one from various methods for rectifying the illegal situation. Here, a question arises concerning to what extent the adversary system should be applied.
For instance, supposing that there are three methods that are logically applicable as means to rectify illegality, A, B, and C, and if the plaintiff alleges Method A, and the court considers that in light of the content of the plaintiff's allegations, it would be illegal for the administrative agency not to choose Method B even by its discretion but the court cannot render a judgment to that effect as a judgment partially upholding the claim of the plaintiff who actually seeks Method A, and at the same time, the court has made a determination that a defense insisting on Method C can possibly be established, the question is whether the court is responsible for exercising its authority to ask for explanation and urging the plaintiff to allege Method B, while urging the defendant to raise a defense of Method C.
This case is exactly the case where such question arises. In my opinion, as explained above, the court of prior instance should inevitably be considered to have failed to make sufficient examination and committed violation of law, by reason that it failed to appropriately exercise its authority to ask for explanation.

The concurring opinion by Justice KONDO Takaharu is as follows.
I am in agreement with the majority opinion, but in consideration of the dissenting opinion by Justice HORIGOME Yukio and the dissenting opinion by Justice IMAI Isao, I would like to give some supplementary comments.
1. Constitutionality of the Act of Offering Lands for Use
The purpose of the principle of separation of state and religion as provided for in the second sentence of Article 20, paragraph (1) and paragraph (3) of said Article of the Constitution as well as Article 89 of the Constitution may be to provide institutional guarantee so that the state (or a local public entity; the same shall apply hereinafter) does not give preferential treatment for a specific religion and undermine positive or negative freedom of religion of people who believe in other religions or those who do not believe in any particular religion, ultimately thereby preventing the state from connecting itself with a specific religion and exploiting the power of that religion politically. That is to say, the religion that the Constitution originally targets under the principle of separation of state and religion is one that has the risk of being politically exploited by the state, and the former State Shinto is a typical example of such religion. There are other religions that have strong power to control their believers mentally or financially and may potentially have such risk, for example, influential religious sects that belong to the existing major religion, and new religions that have strong controlling power over their believers.
It is said that there are more than 100,000 shrines of Shrine-centered Shinto across the country, and S Shrine which is in dispute in this case is one of them. It is an ujigami shrine [a Shinto shrine for an Ujigami, a local tutelary deity] which is worshiped by the Ujiko Group consisting of ujiko or parishioners, who are subsumed in the scope of people living in a limited area, S District in Sunagawa City, and it is a small Shinto shrine that has a torii but has no independent shrine building. Even taking into consideration the fact that the Shrine is under the umbrella of the Association of Shinto Shrines (Jinja Honcho) and F Shrine Agency (Jinjacho), the Shrine can by no means be evaluated as representing a religion with a strong power to control its believers mentally or financially. The dissenting opinion by Justice HORIGOME argues that the religious nature of the Shrine and of the Shrine's Property is weak, and therefore the City's Act of Offering Lands for Use cannot be deemed to be in violation of the principle of separation of state and religion even if the generally-called purpose-effect test is applied thereto. This argument is understandable as a substantial theory.
However, it is difficult and inappropriate to draw a line between constitutional and unconstitutional depending on the magnitude of the risk that the aforementioned harmful influence might occur. The purport of the Constitution is to completely prohibit the state from giving preferential treatment for any specific religion (however, it is another argument whether or not it is permissible for the state to protect buildings used as religious facilities by including them in the category of cultural property with historical significance or treat them as tourism resources, as pointed out by the majority opinion). When the state is required to have strict religious neutrality to that level, the state may face some difficulties in rectifying an unconstitutional condition, but the condition itself in which the state is separated from religion does not seem to be problematic.
As the majority opinion explains, the Act of Offering Lands for Use should inevitably be judged to, as its direct effect, make it easy for the Ujiko Group to carry out religious activities using the Shrine, and however small the actual risk of causing the aforementioned harmful influence is, there is no choice but to evaluate said act to be contrary to Article 89 and the second sentence of Article 20, paragraph (1) of the Constitution and therefore unconstitutional.
2. Means to rectify the unconstitutional condition available in this case
This case is an inhabitants' suit in which the appellants allege that the practice of offering city-owned land for the use as the site of the facility related to a Shinto shrine is unconstitutional and therefore the appellant's failure to request the Neighborhood Association to remove the Shinto shrine facility including the Torii and the Jishingu and to vacate the lands constitutes an illegal omission of administration of property, and based on these allegations, they seek a declaration of the illegality of such omission under Article 242-2, paragraph (1), item (iii) of the Local Autonomy Act.
Assuming that the Act of Offering Lands for Use is unconstitutional, if there is no method for rectifying the unconstitutionality except for requesting the removal, etc., the consequence would be that the appellees' claim for such declaration should be upheld and the final appeal should be dismissed.
However, as mentioned in the majority opinion, there can be appropriate alternative means to rectify the unconstitutional condition, such as granting the Lands, for example. What is more, taking account of the circumstances leading to the Act of Offering Lands for Use and the purport of the "Act on Disposition of National Property Leased to Temples, Shinto Shrines, etc. Without Compensation," alternative means such as grant seem to be more suitable in this case. And if requesting the removal, etc. is not the only method available for rectifying the unconstitutional condition, the failure to apply that method would not immediately be judged to be illegal, which would lead to the conclusion that the appellees' claim for said declaration should be dismissed.
Another point to be taken into consideration is that the "removal of the Shinto shrine facility including the Torii and the Jishingu," as claimed by the appellees, might infringe freedom of religion of the ujiko (parishioners or believers) of S Shrine in some aspects. If the facility of S Shrine is removed from the present site and then lost or relocated to a remote place, it would be impossible or extremely difficult for the ujiko (parishioners or believers) to visit the shrine or perform other religious acts at the shrine. This infringes freedom of religion of the ujiko (parishioners or believers) of S Shrine.
In short, the request for the removal, etc., as a result of the attempt of realizing separation of state and religion, might possibly infringe freedom of religion guaranteed under the first sentence of Article 20, paragraph (1) of the Constitution. On the contrary, if the state takes means such as grant, etc. as mentioned above, it is unlikely to infringe freedom of religion of the ujiko (parishioners or believers) and can bring about an appropriate consequence.
In this suit, the appellant has not alleged that there is any alternative means to rectify the unconstitutional condition except for requesting the removal, etc. as mentioned above, but it is obvious, without the need to hear allegations of the parties concerned, that there can be alternative means, and what is more, such means are unlikely to infringe freedom of religion of the ujiko (parishioners or believers). Consequently, the court that handled this case should have exercised its authority to ask for explanation and examine this point, irrespective of whether or not the parties concerned made such allegation.
There may be two types of theories regarding the burden of proof as to whether or not there are any alternative means, as pointed out in the dissenting opinion by Justice IMAI: the cause of action theory, which argues that the absence of any alternative means is a ground of action, and the defense theory, which argues that the existence of any alternative means is a defense. In this respect, I consider that both theories can be valid and do not think that the defense theory is the only one to be adopted, but even taking the stance based on the defense theory, I believe that the court should have exercised its authority to ask for explanation and examine this point, irrespective of whether or not the parties made such allegation. It is often the case that when evidence is inadequate to show the facts that provide grounding for a reasonably anticipated defense, it is appropriate for the court to exercise its authority to ask for explanation. Especially in cases where the court's failure to exercise its authority to ask for explanation causes the risk of infringing freedom of religion of the ujiko (parishioners or believers) who are not the parties to the suit, as happens in this case, the court should be construed to have neglected to exercise its authority to ask for explanation.
And since there are not enough materials for judging whether or not, in this case, there is any alternative means that is feasible in reality except for requesting the removal, etc. and whether or not the appellant intends to exclude such means, it is appropriate to remand this case to the court of prior instance and have these points further examined.
For these reasons, I am in agreement with the majority opinion.

The opinion by Justice KAINAKA Tatsuo, Justice NAKAGAWA Ryoji, Justice FURUTA Yuki, and Justice TAKEUCHI Yukio is as follows.
We share the conclusion with the majority opinion, but cannot agree with the view of the majority opinion indicated in II-2 (Constitutionality of the Act of Offering Lands for Use). We consider that there is the need for further examination as to the factors required when judging the constitutionality of the Act of Offering Lands for Use.
1. The majority opinion, in II-1, Framework for constitutional judgment, shows a general judgment as to the connection between the state and religion, and then indicates specific criteria for judging whether or not the act of offering national or public land to be used for a religious facility without compensation goes beyond the limit that is deemed to be reasonable, and violates Article 89 of the Constitution, i.e. "judgment should be made comprehensively in light of the socially accepted ideas, while taking into consideration various factors, including the nature of the religious facility in question, the circumstances where the land in question has been offered for the use as the site of the relevant facility without compensation, the manner of offering without compensation, and the public's evaluation of such practice."
We basically agree with this view indicated by the majority opinion.
However, we would like to note the following points for reviewing the constitutionality in this case.
As is stated in the majority opinion, when making a specific judgment on whether or not the Act of Offering Lands for Use is in compliance with Article 89 of the Constitution, "judgment should be made comprehensively in light of the socially accepted ideas, while taking into consideration various factors." In particular, when it comes to a religious facility that has survived and has been inherited based on its close relationship with the local community since the Meiji era, as the one in dispute in this case, it is necessary to consider comprehensively, in a literal meaning, factors such as the past history and background, the nature of the religious facility, the specific manner of using the land in question, the nature of the entity that operates the facility, the local inhabitants' understanding and the public's evaluation, not only from its appearance but also focusing on its actual conditions. In this respect, the judgment in prior instance made specific and detailed findings of fact in its part determining that the Shrine's Property and the events held at the shrine have a religious nature, whereas it only made partial or abstract findings of fact with regard to the past background, the specific manner of using the land in question, the nature of the entity that operates the facility, and the local inhabitants' understanding and the public's evaluation. The majority opinion judged the Act of Offering Lands for Use to be unconstitutional based on the facts determined from a one-sided viewpoint as was done by the judgment in prior instance, and it seems to have failed in the end to make a comprehensive judgment in a true meaning.
In order to accurately judge whether or not the Act of Offering Lands for Use complies with Article 89 of the Constitution, it is necessary, above all, to find the overall facts of various factors required for a judgment, and then make a comprehensive judgment.
2. Focusing on the various factors required for a constitutional judgment, which are found by the judgment in prior instance and relied on by the majority opinion, we consider one by one in the following section as to whether or not the court of prior instance made adequate and overall findings by making sufficient examination.
(1) The most essential part of the Act of Offering Lands for Use is the act of offering Lands 1 and 2 without compensation for the use as the site of S Hall (the Building), which is used as a local meeting hall, etc. and in which the Hokora is installed.
It is incontestable that the Hokora, in combination with other Shrine's Property, has a religious nature, but when judging the constitutionality of the act of offering of the city-owned lands to be used for the Building, judgment should be made after clearly finding the actual conditions of the use and the structure of the Building as a whole. The Building was initially constructed for the purpose of promoting friendly relations of people in the local community, and in fact, it is apparently used for activities for promoting mutual friendship among local inhabitants. In addition, the plaintiff alleges and proves as follows: (i) the Building is a town hall and the inside structure thereof is designed so that it can be used as a local meeting hall or community center, and the section of the Building where the Hokora is installed occupies only a small space within the Building (according to the rough plan of the Building, about 5% of its floor area), with the door leading to that section closed and few people visiting there on a daily basis; (ii) as for the status of the use of the Building, it is mostly used as classrooms for teaching English and other subjects or rooms for holding events to promote friendship within the neighborhood association, etc. such as club activities for the elderly, whereas of the 355 times the Building is used per year, only about seven times, or 2% of the annual total, is it used for Shinto shrine events. In light of such structure and status of the use of the Building, the meaning of offering of city-owned lands to be used for the Building necessarily differs from the case of offering such lands to be used for a simply religious facility, and it is obvious that such difference has an influence on a judgment as to whether or not it constitutes offering of a special benefit or assistance for a specific religion as well as on the public's evaluation.
It is generally not rare that a local public hall or similar facility, for historical reasons, accommodates religious property in some space inside of it. Even supposing that public land is leased to such public hall, etc. without compensation, it may be a commonly accepted view that the public, to say nothing of the parties concerned, would not consider such leasing of land to constitute offering of a special benefit or assistance for a specific religion in particular, as long as the structure and the status of the use of the public hall, etc. as a whole indicate that it is constructed and used as a public hall, etc.
The judgment in prior instance made specific and detailed findings of fact with regard to the status of the use and the structure of the Building, including the Hokora that occupies only a small space within the Building and the use of the Building as a Shinto shrine, whereas it did not try to make specific findings, in spite of the appellant's allegations, with regard to the status of the use, etc. of the Building as a whole, and in this respect, the court of prior instance failed to make sufficient examination that is required to make a comprehensive judgment.
(2) The judgment in prior instance and the majority opinion found the circumstances where the Lands 1, 3, and 4, which are used as the site of the Shrine's Property, came under the ownership of the town through the donations by the local inhabitants, and with regard to the Lands 1 and 4, on which the Shrine's Property existed at the time when the town accepted the donation, they determined that D, who is a local inhabitant and owned these lands, made an offer to donate the lands "in an attempt of avoiding the burden of fixed asset tax," and the town decided to permit the use of these lands for the Shinto shrine facility without compensation and accepted the donation.
However, Lands 1 and 4 had originally been offered by D under the circumstances where the town, for the purpose of constructing an extension of an elementary school, needed to use the lands adjacent to the site of the school where the Shinto shrine facility existed at that time, and D offered said lands that he/she owned as substitute lands for relocation of the facility. Further, according to the appellant's allegations, upon donating Lands 1 and 4 to the town, D also donated the land of 1,229 square meters as a site of the school. Taking these circumstances into account, it is inappropriate to evaluate the donation of Lands 1 and 4 separately, but it should be construed that the town accepted D's donation because the town needed to maintain the good relationships with its inhabitant who cooperated for enhancing the town's public education by giving away his/her own property, and at the same time, the acceptance of the donation of these lands was to bring about a considerable benefit for the town for the future (it seems that in fact, the land donated by D is used as the site of the elementary school, and Land 4 is subsequently used as the site of a city-owned facility established to commemorate the development of the city, although these facts were not included in the findings by the judgment in prior instance, etc.)
The circumstances leading to the acceptance of the donations and the status of the use of the donated lands as described above are important facts for judging whether or not the town's permission of the continued use of part of the donated lands for the existing Shinto shrine facility constitutes offering of a special benefit, etc. for a specific religion, and how such practice is evaluated by the public, and a comprehensive judgment cannot be made without making overall findings of these facts. The court of prior instance also failed to make sufficient examination on this point.
(3) Next, as for the operation of the Shrine, the majority opinion found facts that S Shrine has no Shinto priest, it is managed and operated by the ujiko group consisting of people living in the neighboring area but the scope of ujiko (parishioners or believers) is not clear and the group has no rules, etc., and festivals are performed there only three times a year. Furthermore, the appellant alleges that among the persons engaged in operating the shrine, such as the representatives called ujiko sodai and the caretakers, etc., none of them believe in Shintoism, and these persons participate in the ujiko group in a secular meaning, that is, as if they participate in a neighborhood association as its staff, and they only take part in the events held there as customs inherited from their ancestors, with no one finding any religious meaning or religious purpose in the events. If the ujiko group of the Shrine has such nature and carries out such activities, these facts should be taken into consideration when judging the religious nature of the Shinto shrine facility in question. However, the court of prior instance cannot be deemed to have made sufficient examination on this point, either.
(4) The judgment in prior instance and the majority opinion held that the Act of Offering Lands for Use is inevitably evaluated from the public's point of view to show that the city offers a special benefit to a specific religion and assists it, and they judged said act to be unconstitutional on the grounds of this.
However, when reviewing the public's evaluation as to the act of offering of public land to be used for a religious facility as the one in question in this case, that is, a religious facility that exists in a rural area in Hokkaido and has been maintained and managed exclusively by local inhabitants, and is known to few people except for local inhabitants, it is necessary, first of all, to review the general evaluation by local inhabitants who live in the area where such religious facility exists. However, nothing in the judgment in prior instance and the majority opinion suggests that this point was reviewed.
The evidence produced in this case also does not suggest that before the appellees made the request for an audit, inhabitants had raised an issue of the constitutionality of the Act of Offering Lands for Use or the city assembly had discussed this issue. Rather, it seems that local inhabitants excluding the appellees regard the Shrine as being only something that conveys the sentiments of their ancestors, who were pioneers of the area, and do not go beyond that level to the extent that they recognize the Shrine as embodying or diffusing Shintoism; their common view may be that there is no particular constitutional problem with the Act of Offering Lands for Use. Such approach of shaping the public's evaluation in an abstract form without reviewing these points, and making a constitutional judgment based on such evaluation, should inevitably be criticized as insufficient examination.
3. For the reasons stated above, the court of prior instance failed to make sufficient examination as to various factors required for making a constitutional judgment, and if the court of prior instance made findings of fact and determination on the points mentioned in 2 above correctly, the court would have possibly judged the Act of Offering Lands for Use to be constitutional, contrary to the judgment of the majority opinion.
Consequently, we believe that the judgment in prior instance should be quashed, and for further examination as to the factors required for judging the constitutionality of the Act of Offering Lands for Use, this case should be remanded to the court of prior instance.

The dissenting opinion by Justice IMAI Isao is as follows.
I am in complete agreement with the holdings shown in II of the majority opinion, to the effect that the Act of Offering Lands for Use, that is, the act of Sunagawa City to offer the lands in its ownership to be used for the Shrine's Property without compensation, constitutes an act of appropriating public property for use that is prohibited under Article 89 of the Constitution, and consequently, said act also constitutes the vesting of privileges to any religious organization that is prohibited under the second sentence of Article 20, paragraph (1) of the Constitution. However, I cannot agree with the holdings shown in III of the majority opinion, to the effect that the judgment in prior instance should be quashed and this case should be remanded to the court of prior instance. In my opinion, the final appeal should be dismissed on the following grounds.
1. This case is an inhabitants' suit in which the appellees, who are inhabitants of Sunagawa City, allege that despite the unconstitutionality of the city's Act of Offering Lands for Use, the appellant, who is the mayor of the city, fails to cancel the contract of loan for use pertaining to the Act of Offering Lands for Use and requests the removal of the Shrine's Property and vacation of the lands, and such failure by the city mayor constitutes an illegal omission of administration of property, and based on these allegations, the appellees seek a declaration of the illegality of said omission.
The court of prior instance found the Act of Offering Lands for Use to be unconstitutional, and upheld the appellees' claim to the extent that they seek a declaration that the appellant's omission to request the neighborhood association to remove the Shrine's Property is illegal.
The majority opinion, while judging the Act of Offering Lands for Use to be unconstitutional, reasoned that having the Shrine's Property removed and the lands vacated is not the only means available to rectify the unconstitutional condition (i.e. the condition where the Shrine's Property exists on the city-owned lands), but there can be alternative means such as grant, transfer for value or lease at a fair market value of the lands, and if there is any rational and realistic alternative means that the appellant can choose, the appellant's failure to take the measure of requesting the removal of the Shrine's Property and vacation of the lands is not immediately judged to be illegal in the aspect of administration of property. Following this, the majority opinion stated that the court of prior instance should have appropriately examined and judged whether or not there exists any rational and realistic alternative means to rectify the unconstitutionality of the Act of Offering Lands for Use, or exercised its authority to ask for explanation from the parties, and in this respect, the court of prior instance neglected to make sufficient examination or exercise its authority to ask for explanation, which is in violation of law.
2. The appellees' claim of this case is to seek a declaration of the illegality of the appellant's omission to request the removal of the property, with the intention of rectifying the unconstitutional condition described above. As the majority opinion mentioned, requesting the removal of the Shrine's Property is not the only one means to rectify the unconstitutionality but there can be alternative means such as grant, etc. of the lands. The question is whether or not the existence of any alternative means available can be a ground for dismissing said claim, and if it can be a ground for dismissal, whether or not the court should take it into account even when the appellant does not allege or prove it.
It is not very clear from which of the following views the majority opinion found its basis for ruling that the court of prior instance illegally neglected to make sufficient examination or exercise its authority to ask for explanation, i.e. the view that the appellees, who are the plaintiffs, are required to allege and prove the absence of any alternative means to rectify the unconstitutional condition (tentatively referred to as the "ground of action theory"), or the view that the appellant, who is the defendant, is required to allege and prove such fact (tentatively referred to as the "defense theory").
For the reasons detailed below, I consider that the ground of action theory is not applicable, and if the defense theory is applied, there was no breach of the duty to ask for explanation on the point mentioned above.
3. First, I examine the applicability of the ground of action theory.
In cases where the existence of a certain property on city-owned land creates an unconstitutional condition, it should be said that an appropriate and reasonable means that is usually conceivable to rectify such condition is for the city to request the owner of the property to remove the property.
As is recognized by the majority opinion, in order for the existence of any alternative means to rectify the unconstitutional condition to be a reason for precluding the alternative of requesting the removal, the mere possibility of the existence of any alternative means is not enough, but it is necessary that such alternative means is a rational one that the city mayor can choose, and that there is a realistic possibility of his/her choosing such means. Also as is stated in the majority opinion, the appellant, who is the defendant, has discretion to choose the alternative means to be applied. And even when there is any rational and realistic alternative means to rectify the unconstitutional condition, whether or not such means is actually put into practice depends on whether or not the defendant has the intention of putting it into practice, and what is more, there is no need to say that if said means is a contract for granting, selling, leasing, etc. of lands, the intention of the other party to the contract cannot be ignored. Furthermore, some of the alternative means may require a resolution of the city assembly, such as grant of lands. These issues are uncontrollable to the plaintiffs. Assuming so, it is appropriate to construe that the existence of any rational and realistic alternative means to rectify the unconstitutional condition should be alleged and proved by the appellant, who is the defendant, as a reason for precluding the alternative of requesting the removal.
On the other hand, if the appellees, who are the plaintiffs, were required to go so far as to allege and prove the absence of any rational and realistic alternative means to rectify the unconstitutional condition, this would impose excessive burden on the plaintiffs when viewed from the perspective of ensuring equal sharing of burden between the plaintiff and the defendant in an inhabitants' suit, which would result in undermining the function of an inhabitants' suit. The plaintiff can never know how the defendant will exercise its discretionary power.
4. Next, I examine whether or not the court of prior instance would be deemed, when standing on the defense theory, to have neglected to fulfill the duty to ask whether or not the appellant had the intention of raising a defense to the effect mentioned above in this case.
It is the natural consequence under the adversary system that the court cannot take account of a defense unless the defendant raises it. It is clear from the case records that in this case, the appellant, who is the defendant, did not raise such defense. I am not to deny that there may be cases where, even when the defendant has not raised a defense, the court is required to ask for explanation about the intention of raising a defense. The question is whether or not the court has such duty to ask for explanation, in light of the course of proceedings of this case.
The course of proceedings of this case is as follows. The action was filed on March 17, 2004. In the first instance, attorneys at law were appointed to serve as the appellant's counsel from the beginning. Following trial held on five dates for oral argument and seven dates for preparatory proceedings, on March 3, 2006, the court of first instance rendered a judgment rejecting the appellant's allegations by which the appellant lost the case. The appellant appealed against this judgment. In the second instance, following trial held on two dates for oral argument and five dates for preparatory proceedings, oral argument was concluded on April 17, 2007, and the judgment in prior instance was rendered on June 26 of the same year. During a certain period while this case was pending in the prior instance, the same court concurrently tried the T Shrine Case, which is cited in the majority opinion. In the T Shrine Case, the point in dispute was the constitutionality of the measure taken by Sunagawa City, i.e. granting to the neighborhood association the city-owned land that had been offered by the city for the use as the site of the shrine without compensation, and the appellant contended that the grant of the city-owned land was not in violation of the Constitution. In view of the course of proceedings of this case, it should inevitably be said that the appellant, in the phase of the second sentence at the latest, must have had enough chance to raise a defense of the existence of any rational and realistic alternative means, such as grant, etc. in the case that the Act of Offering Lands for Use is judged to be unconstitutional. However, even investigating into the case records, I cannot find evidence to show that the appellant raised such defense.
The majority opinion stated that in light of the course of trial of the T Shrine Case as mentioned above, the court of prior instance had official knowledge of the likelihood that there exist alternative means in this case as well and that the appellant may take such means, and mentioned this as one of the grounds for criticizing that the court of prior instance should have exercised its authority to ask for explanation. However, there is no one else but the appellant him/herself who knew more of the existence of any alternative means than the court of prior instance, and although there was obviously no obstacle to the appellant in alleging said likelihood if he/she intended to do so, the appellant actually did not make such allegation. Nor did the appellant make any mention of this point in the statement of reasons for final appeal. It is an unacceptable view in light of the principle of litigation under the adversary system to argue that even in such cases, the court is required to ask for explanation as to whether or not the appellant intends to raise a defense to the effect mentioned above. This conclusion is valid even when taking into consideration that this case is an inhabitants' case, a type of administrative case litigation. Consequently, I cannot find the court of prior instance to have breached the duty to ask for explanation on this point.
5. For the reasons stated above, I consider the judgment in prior instance, which partially upheld the appellees' claim, to be justifiable, and the final appeal should be dismissed.

The dissenting opinion by Justice HORIGOME Yukio is as follows.
In my opinion, the Act of Offering Lands for Use is not in violation of the Constitution, and therefore I disagree with the majority opinion that found said act to be unconstitutional, and consider that the judgment in prior instance should be quashed, the judgment in first instance should be revoked, and the appellees' claim should be dismissed. The reasons for my opinion are as follows.
1. The point in dispute in this case is whether or not it is in violation of the constitutional principle of separation of state and religion for Sunagawa City to offer the lands in its ownership for the use as the site of the Shinto shrine facility without compensation. With regard to the general construction of the Constitution on this point, I basically agree with the view of the majority opinion indicated in II-1 "Framework for constitutional judgment." However, even on the assumption of such construction of the Constitution, I cannot agree with the majority opinion for applying said construction to this case and judging said act to be unconstitutional.
2. The circumstances where Sunagawa Town acquired Lands 1 and 4 are as follows.
(1) The Shrine was initially built adjacent to the location of the Elementary School (S Elementary School). In around 1948, a plan to construct an extension of the school building and newly construct a gymnasium was drawn up, and in order to carry out this plan, there aroused the necessity to relocate the facility of the Shrine from the land that was supposed to be used as the construction site.
(2) On this occasion, D, who is an inhabitant of S District, in order to cooperate with the plan, offered Lands 1 and 4 that he/she owned as the site for the relocation of the shrine facility. Around that time, the shrine facility was relocated to Lands 1 and 4.
(3) In 1953, D made an offer to Sunagawa Town to donate Lands 1 and 4 for the shrine facility. At its assembly session, Sunagawa Town adopted a resolution to accept the donation of said lands and to offer said lands to be used for the shrine facility without compensation, and then acquired ownership for said lands. At the same time, Sunagawa Town also accepted a donation of the land of 1,229 square meters from D as a school site.
3(1) Given the facts mentioned in 2 above, it should be said that D and Sunagawa Town formed a contract of gift with burden of permitting the use of Lands 1 and 4 as the site of the Shinto shrine facility of the Shrine without compensation.
(2) Assuming that such a contract of gift with burden itself is contrary to the purport of the Constitution providing for the principle of separation of state and religion and therefore impermissible, the contract of gift itself formed between D and Sunagawa Town would be void and Sunagawa Town would have never acquired ownership for Lands 1 and 4, and in consequence, the appellees' claim, made on the premise that Sunagawa City holds ownership for Lands 1 and 4, would be invalid from the beginning.
(3) Since the majority opinion is premised on the valid acquisition of ownership for Lands 1 and 4 by Sunagawa City, it should inevitably be deemed to be construing said contract of gift with burden to be valid, and I also consider said contract of gift with burden to be valid. Consequently, it is obvious that Sunagawa City has a contractual obligation to permit the use of Lands 1 and 4 for the Shinto shrine facility of the Shrine without compensation.
4(1) Subsequently, in around 1970, the Neighborhood Association planned to construct the Building (S Hall) as a local meeting hall, and constructed the Building with subsidies received from Sunagawa City, using the lands leased from the city without compensation, including Lands 1 and 4. Upon the construction of the Building, the former Shinto shrine facility was pulled down except for the Hokora and the Jishingu; the Hokora was relocated to a space within the building, and the Torii was newly installed on Land 1.
(2) The Building is owned by the Neighborhood Association, and Sunagawa City and the Neighborhood Association has formed a contract of loan for use of the site of the Building.
(3) At present, Sunagawa City offers city-owned lands as the site of the Building, the Torii, and the Jishingu without compensation. Under the circumstances described above, the appellant can be construed, in relation to the facility of the Shrine, to be offering city-owned lands without compensation for the purpose of performing its obligation in line with the purport of the contract of gift with burden concluded with D. Furthermore, since the former Shinto shrine facility was pulled down except for the Hokora and the Jishingu, and the Hokora has been installed in a space within the Building, which is a secular facility, in a manner that it is usually not seen by the public, and as a result, the religious nature of the shrine facility has become weaker, it is hardly imaginable that the contract of gift with burden that had been valid has later become unconstitutional and void. Furthermore, Sunagawa City permits the neighborhood association to use Land 1, which was gifted thereto, as the site of the Building, and also uses by itself Land 4 as the site of the Kamikawa Road Excavation Monument, and by doing so, the city gains a considerable benefit of achieving its public policy. The benefit that the city thus gains should be deemed to exceed its burden under the contract.
5(1) Shintoism is a traditional folk belief or nature belief that developed spontaneously, centering on nature worship or ancestor worship generated among people living in the Japanese Archipelago by forming groups, with its origin in Japan's native culture. It is not a religious belief founded by a specific person, and it has no specific dogma or sacred writings. Thus, Shintoism can be regarded as a religious belief closely related to the lives of the Japanese people and can even be deemed to have become part of their lives. This is apparent from the facts that many Japanese people hold wedding ceremonies at Shinto shrines and visit Shinto shrines at the beginning of the New Year. Indeed, it cannot be denied that Shintoism has the nature of a religion as provided for in the Constitution, but since the Shrine has the nature as described below and has become part of the lives of local inhabitants, I consider that it is inappropriate to, when applying the principle of separation of state and religion, treat Shintoism in the same way as one would treat an exclusive religion that has a founder as well as an established dogma or sacred writings, within the category of religions in general in an abstract meaning.
(2) Although the Shrine, which is not a religious corporation, is managed and operated by the ujiko group consisting of people living in the neighboring area, it has no rules about its officers or ujiko (parishioners or believers), nor can the scope of the members of the ujiko group be defined. The Shrine was initially erected by people who moved to S District for developing Hokkaido, with the hope of securing their peace of mind. In this respect, it can be deemed to be closely related to the lives of these pioneers, and it has been managed and operated by the pioneers and their descendants as a symbol that conveys the memory of the days of development. The Shrine holds events three times every year, namely, hatsumode, spring festival, and autumn festival, which are conducted mainly for the purpose of promoting peace of mind and mutual friendship of local inhabitants and cannot be presumed to be conducted for diffusing Shintoism. The majority opinion ruled that it cannot be said that all of the events held at the Shrine, even including hatsumode, are mere secular events whose religious meaning is weak. Such view seems strange to the eye of the general public.
(3) Considering that the Building is used exclusively as a local meeting hall, with the only exception that it is used for the shrine's events three times a year, the Hokora is installed within the building in a manner where it is usually not seen by the public, and the Shrine's Property is less religious, the Building should rather be regarded as a facility that is more customary or secular.
6(1) When judging whether or not the condition of the national or public land being used as the site of a religious facility without compensation is in violation of the Constitution that provides for the principle of separation of state and religion, as explained by the majority opinion, judgment should be made comprehensively in light of the socially accepted ideas, while taking into consideration various factors, including the nature of the religious facility in question, the circumstances where the land in question has been offered to be used as the site of the relevant facility without compensation, the manner of offering without compensation, and the public's evaluation of such practice.
(2) In this case, Sunagawa City offered the lands in its ownership as the site of the religious facility of the Shrine under the aforementioned circumstances, and therefore Sunagawa City should be deemed to be offering its lands for the purpose of performing its obligation under the contract of gift with burden concluded with D. In addition, it is inappropriate just to treat the Shrine in the same way as one would treat the facility that represents an exclusive religion that has a founder as well as an established dogma or sacred writings. What is more, the Shrine, which is managed and operated by the ujiko group as described above, was initially erected for securing the peace of mind of the pioneers who developed Hokkaido, which means that it is more customary or secular. On the occasion of conducting events there, the ujiko group pays the neighborhood association a prescribed charge for use, and the religious nature of the Shrine's Property is weak. Comprehensively from these circumstances, even when the points indicated by the majority opinion are taken into consideration, the general public does not regard by any possibility Sunagawa City's act of offering the site of the facility of the Shrine without compensation as the act of assisting, facilitating or promoting the religion of the shrine, and consequently, the Act of Offering Lands for Use cannot by any possibility be considered to be beyond the limit that is deemed to be reasonable, in light of the social and cultural conditions of our country, in relation to the fundamental purpose of the system of securing guarantee of freedom of religion.
For the reasons stated above, Sunagawa City's Act of Offering Lands for Use cannot be judged to be in violation of the constitutional principle of separation of state and religion. The majority opinion is against the feeling of the Japanese people in general, and I cannot by any means agree with it. In conclusion, the judgment in prior instance and the judgment in first instance which found the Act of Offering Lands for Use to be in violation of the constitutional principle of separation of state and religion should inevitably be quashed and revoked, and the appellees' claim should be dismissed.

Presiding Judge

Justice TAKESAKI Hironobu
Justice FUJITA Tokiyasu
Justice KAINAKA Tatsuo
Justice IMAI Isao
Justice NAKAGAWA Ryoji
Justice HORIGOME Yukio
Justice FURUTA Yuki
Justice NASU Kohei
Justice TAHARA Mutsuo
Justice KONDO Takaharu
Justice MIYAKAWA Koji
Justice SAKURAI Ryuko
Justice TAKEUCHI Yukio
Justice KANETSUKI Seishi

(This translation is provisional and subject to revision.)