2012.11.20

2012 (Gyo-Hi) 20

Minshu Vol. 66, No. 11

Judgment concerning the statute of limitations for filing an action for the revocation of an administrative disposition of the condemnation commission with regard to which an administrative review has been made in the case where such a request may be made

Case for the revocation of the administrative disposition on appeal under the Administrative Appeal Act, and for the revocation of the original administrative disposition

Judgment of the Third Petty Bench, quashed and decided by the Supreme Court

Hiroshima High Court, Judgment of September 14, 2011

Where a request for an administrative review has been made with regard to an administrative disposition of the condemnation commission in the case where such a request may be made, the statute of limitations for filing an action for the revocation of the administrative disposition of the condemnation commission shall be subject to Article 14, paragraph (3) of the Administrative Case Litigation Act rather than Article 133, paragraph (1) of the Land Condemnation Act, and said statute of limitations shall be within six months from the day on which the person who seeks revocation became aware of the fact that an administrative disposition on appeal was made in response to his/her request for an administrative review, and within one year from the date of the administrative disposition on appeal.
(There is a concurring opinion.)

Article 14, paragraph (3) and Article 20 of the Administrative Case Litigation Act, Article 133, paragraph (1) of the Land Condemnation Act

Article 14, paragraph (3) of the Administrative Case Litigation Act　
If a request for administrative review is made with regard to an original administrative disposition or administrative disposition on appeal in cases where a request for administrative review may be made or where an administrative agency has mistakenly informed that a request for administrative review may be made, the person who has made the request, notwithstanding the provisions of the preceding two paragraphs, may not file an action for the revocation of an administrative disposition when a period of six months has elapsed from the day on which the person became aware of the fact that an administrative disposition on appeal was made in response to his/her request for an administrative review or when a period of one year has elapsed from the date of the administrative disposition on appeal; provided, however, that this shall not apply if there are justifiable grounds for failing to meet such time limit.

Article 20 of the Administrative Case Litigation Act
When filing an action for the revocation of the original administrative disposition by joining it, pursuant to the provision of the first sentence of paragraph (1) of the preceding Article, with an action for the revocation of an administrative disposition on appeal that has dismissed a request for an administrative review of the original administrative disposition, it shall not be required to obtain consent from the defendant in the action for the revocation of the original administrative disposition, notwithstanding the provision of Article 16, paragraph (2) as applied mutatis mutandis pursuant to the second sentence of paragraph (1) of the preceding Article, and when an action for the revocation of the original administrative disposition is thus filed, it shall be deemed, with regard to compliance with the statute of limitations, to have been filed at the time of the filing of the action for the revocation of an administrative disposition on appeal.

Article 133, paragraph (1) of the Land Condemnation Act
An action relating to an administrative disposition of the condemnation commission (excluding actions relating to compensation for loss prescribed in the following paragraph and paragraph (3)) shall be filed within an unextendable period of three months from the day on which the service of an authenticated copy of the written administrative disposition has been received.

1. The judgment in prior instance is quashed with respect to the part concerning the appellee of final appeal, and the judgment in first instance is revoked with respect to said part.
2. The case is remanded to the Hiroshima District Court with respect to the quashed part of the judgment in prior instance mentioned in the preceding paragraph.

Concerning the reasons for petition for acceptance of final appeal argued by the appellants of final appeal (except for the reasons excluded)
1. With regard to the Land Adjustment Project for the Saijo Station Area within the City Planning Project of Higashi Hiroshima City (hereinafter referred to as the "Project"), Higashi Hiroshima City filed an application for an administrative disposition under Article 94, paragraph (2) of the Land Condemnation Act with regard to compensation for loss, designating the appellants and Appointing Party A as the respondents, based on Article 73, paragraph (3) of the Land Adjustment Act as applied mutatis mutandis pursuant to Article 78, paragraph (3) of the same Act. In this case, the appellants of final appeal allege that said application for an administrative disposition is unlawful because it was filed before the completion of the relocation of building, etc., which Higashi Hiroshima City should have executed under Article 77, paragraph (7) of the Land Adjustment Act (hereinafter referred to as the "Direct Execution"), and hence the administrative disposition dated October 24, 2006, which was made by the Hiroshima Prefecture Land Condemnation Commission without dismissing without prejudice the abovementioned application for an administrative disposition (the disposition of the Hiroshima Prefecture Land Condemnation Commission shall hereinafter be referred to as the "Administrative Disposition on Compensation for Loss") is illegal, and based on this allegation, they demand that the appellee of final appeal revoke the Administrative Disposition on Compensation for Loss. In another action filed by the appellants, which was subsequently joined with this action, they also alleged the illegality of the administrative disposition on appeal dated July 22, 2009, which was made by the Minister of Land, Infrastructure, Transport and Tourism to dismiss with prejudice on the merits the request for an administrative review made by the appellants and Appointing Party A with regard to the Administrative Disposition on Compensation for Loss (the disposition of the minister shall hereinafter be referred to as the "Administrative Disposition on Appeal"), and demanded that the State revoke this disposition. However, the part of the judgment in prior instance which dismissed the claim for revocation of the Administrative Disposition on Appeal has already become final and binding.

2. The outline of the facts determined by the court of prior instance is as follows.
(1) Appellant X1, Appellant X2, and Appointing Party A are heirs of late B.
(2) B owned a tile-roofed one-story (partly two-story) wooden building and other structures as well as standing trees, soil and stones (hereinafter collectively referred to as the "Building, etc."), located in Saijohonmachi, Higashi Hiroshima City, Hiroshima Prefecture, and Appellant X3, a company for which Appointing Party A serves as the representative (hereinafter referred to as the "appellant company"), owned structures and other articles (hereinafter referred to as the "Structure, etc."), located in Saijohonmachi. The Building, etc. and the Structures, etc. existed within the area subject to relocation in FY2003 under the Project.
(3) As of October 30, 2003, Higashi Hiroshima City gave notice and made an inquiry under Article 77, paragraph (2) of the Land Adjustment Act, to Appellant X1, Appellant X2, and Appointing Party A with regard to the relocation of the Building, etc., and also to the appellant company with regard to the relocation of the Structures, etc., designating the time limit for relocation as February 10, 2004, for both cases.
On March 24, 2004, Higashi Hiroshima City launched the Direct Execution under paragraph (7) of said Article, and on September 29, 2004, the city relocated the Building, etc. and the Structures, etc. to the substitute land, and gave notice to the appellants and Appointing Party A of the completion of the Direct Execution.
Higashi Hiroshima City held a consultation with the appellants and Appointing Party A regarding compensation for loss under Article 78, paragraph (1) of said Act but failed to reach an agreement with them, and accordingly, on March 17, 2005, under Article 73, paragraph (3) of said Act as applied mutatis mutandis pursuant to Article 78, paragraph (3) of said Act, the city filed an application with the Hiroshima Prefecture Land Condemnation Commission for an administrative disposition on compensation for loss, designating the appellants and Appointing Party A as the respondents. On October 24, 2006, the commission made the Administrative Disposition on Compensation for Loss.
(4) On November 20, 2006, the appellants and Appointing Party A made a request for an administrative review with the Minister of Land, Infrastructure, Transport and Tourism with regard to the Administrative Disposition on Compensation for Loss. On July 22, 2009, the minister made the Administrative Disposition on Appeal to dismiss their request for an administrative review. On July 23, 2009, the certified copy of the document of the Administrative Disposition on Appeal was served upon the appellants and Appointing Party A.
On January 19, 2010, the appellants filed an action for the revocation of the Administrative Disposition on Appeal, and on June 1, 2010, under Article 19, paragraph (1) of the Administrative Case Litigation Act, they filed an action for the revocation of the Administrative Disposition on Compensation for Loss, from which the Administrative Disposition on Appeal originated, and joined this action with the former action.

3. Given the facts mentioned above, the court of prior instance dismissed without prejudice the action for the revocation of the Administrative Disposition on Compensation for Loss. The holdings of the court of prior instance are as follows.
Article 133, paragraph (1) of the Land Condemnation Act provides that an action relating to an administrative disposition of the condemnation commission, except for an action relating to compensation for loss, shall be filed within an unextendable period of three months from the day on which the service of an authenticated copy of the written administrative disposition has been received, thus setting a shorter statute of limitations for filing an action than that prescribed in Article 14 of the Administrative Case Litigation Act. Since the provisions of Article 133, paragraph (1) of the Land Condemnation Act prevail in terms of the statute of limitations for filing an action for the revocation of an administrative disposition of the condemnation commission with regard to which a request for an administrative review has been made, such action for revocation must be filed within three months from the day on which the service of an authenticated copy of an administrative disposition on appeal made in response to the request for an administrative review has been received, notwithstanding the provisions of Article 14, paragraph (3) of the Administrative Case Litigation Act. In accordance with Article 20 of said Act, the action for the revocation of the Administrative Disposition on Compensation for Loss is deemed to have been filed on January 19, 2010, the day on which the action for the revocation of the Administrative Disposition on Appeal was filed. It follows that the action for the revocation of the Administrative Disposition on Compensation for Loss was filed after three months had already passed since the date of the service of the document of the Administrative Disposition on Appeal, and thus it is an unlawful action filed after the expiration of the statute of limitations for filing an action.

4. However, we cannot affirm the abovementioned holdings of the court of prior instance, on the following grounds.
(1) Under Act No. 84 of 2004 (Act for Partial Revision to the Administrative Case Litigation Act; hereinafter referred to as the "2004 Revision Act"), the statute of limitations for filing an action for the revocation of an administrative disposition prescribed in Article 14, paragraph (1) of the Administrative Case Litigation Act was extended from three months to six months, from the perspective of providing citizens with more effective relief for their rights and interests, and for the purpose of properly assuring an opportunity for them to receive relief for their rights and interests through administrative case litigation, while giving consideration to the stability of legal relationships by way of a statute of limitations for filing an action. At the same time, from the perspective of ensuring stability in the legal relationships concerning land condemnation as soon as possible, the Supplementary Provisions of the 2004 Revision Act set forth a special provision to be introduced in the Land Condemnation Act, stipulating, "An action relating to an administrative disposition of the condemnation commission (excluding actions relating to compensation for loss prescribed in the following paragraph and paragraph (3)) shall be filed within an unextendable period of three months from the day on which the service of an authenticated copy of the written administrative disposition has been received" (Article 133, paragraph (1)). However, as for the statute of limitations for filing an action for the revocation of an administrative disposition on appeal made in response to a request for an administrative review with regard to an administrative disposition of the condemnation commission, the Land Condemnation Act did not introduce a special provision setting a shorter statute of limitations for filing an action relating to such an administrative disposition on appeal, although this kind of shorter statute of limitations can be found in special provisions for other laws. In the end, an action for the revocation of such an administrative disposition on appeal was subject to the statute of limitations under Article 14, paragraphs (1) and (2) of the Administrative Case Litigation Act, that is, within six months from the day on which the person who seeks revocation became aware of the fact that an administrative disposition on appeal was made in response to his/her request for an administrative review, and within one year from the date of the administrative disposition on appeal. This arrangement was made probably because, in the case of an action for the revocation an administrative disposition on appeal made in response to a request for an administrative review, it was considered appropriate to apply the ordinary statute of limitations under the general provisions of said Act, thereby providing the party who made the request with an adequate opportunity to consider whether or not it is necessary to file an action.
On the other hand, as for the statute of limitations for filing an action for the revocation of the original administrative disposition with regard to which a request for an administrative review has been made in the case where such a request may be made (including the case where the administrative agency has mistakenly informed so; the same shall apply hereinafter), Article 14, paragraph (4) of the Administrative Case Litigation Act prior to the revision by the 2004 Revision Act provided for a special rule applicable only in relation to the point of commencement of the period set forth in paragraphs (1) and (3) of said Article (corresponding to paragraphs (1) and (2) of said Article currently effective), stipulating, "The period set forth in paragraph (1) and the preceding paragraph shall…, with respect to the person who has made the request for an administrative review, commence from the day on which the person became aware of the fact that an administrative disposition on appeal was made in response to his/her request for an administrative review or from the date of the administrative disposition on appeal." However, Article 14, paragraph (3) of the Administrative Case Litigation Act as revised by the 2004 Revision Act introduced, separately from paragraphs (1) and (2) of said Article, provisions stipulating, "the person who has made the request for an administrative review, notwithstanding the provisions of the preceding two paragraphs, may not file an action for the revocation of the original administrative disposition or the administrative disposition on appeal when a period of six months has elapsed from the day on which the person became aware of the fact that an administrative disposition on appeal was made in response to his/her request for an administrative review, or when a period of one year has elapsed from the date of the administrative disposition on appeal." Thus, Article 14 paragraph (3) of the Administrative Case Litigation Act designates the statute of limitations and point of commencement for filing such an action for the revocation of the original administrative disposition with regard to which a request for an administrative review has been made as being the same as those for filing an action for the revocation of an administrative disposition on appeal made in response to a request for an administrative review.
(2) Article 14, paragraph (3) of the Administrative Case Litigation Act sets the general rule for the statute of limitations for filing an action for the revocation of the original administrative disposition with regard to which a request for an administrative review has been made in the case where such a request may be made. Therefore, whether or not it is appropriate to shorten this statute of limitations exceptionally through the interpretation of provisions of a special law should be examined deliberately, in light of the purpose of the revision to said Article, i.e. properly assuring an opportunity for citizens to receive relief for their rights and interests through administrative case litigation.
The Land Condemnation Act did not introduce a special provision for setting a shorter statute of limitations for filing an action for the revocation of an administrative disposition on appeal made in response to a request for an administrative review with regard to an administrative disposition of the condemnation commission. The purpose of this arrangement may be to assure the opportunity for the person who has made such request to consider whether or not it is necessary to file an action for the revocation of the administrative disposition on appeal in the same manner as in the ordinary cases under the general rule. Accordingly, even though a shorter statute of limitations is designated by a special provision in respect of an action for the revocation of an administrative disposition of the condemnation commission with regard to which no request for an administrative review has been made, from the perspective of ensuring stability in the legal relationships as soon as possible, it is not necessarily required to apply the same rule to the statute of limitations for filing an action for the revocation of an administrative disposition of the condemnation commission with regard to which a request for an administrative review has been made. Through the application of Article 14, paragraph (3) of the Administrative Case Litigation Act, it is possible to understand that the statute of limitations for filing an action for the revocation of an administrative disposition of the condemnation commission with regard to which a request for an administrative review has been made in the case where such a request may be made, and the statute of limitations for filing an action for the revocation of an administrative disposition on appeal made in response to said request, are set as the same period, and this way of understanding would rather be in line with the purpose of the revision to said Article, i.e., properly assuring an opportunity for citizens to receive relief for their rights and interests through administrative case litigation. Moreover, Article 20 of the Administrative Case Litigation Act provides that when filing an action for the revocation of the original administrative disposition by joining it, pursuant to the provision of the first sentence of Article 19, paragraph (1) of said Act, with an action for the revocation of an administrative disposition on appeal that has dismissed a request for an administrative review with regard to the original administrative disposition, the action for the revocation of the original administrative disposition shall be deemed, in terms of compliance with the statute of limitations, to have been filed at the time of the filing of the action for the revocation of the administrative disposition on appeal. There may be a case where a person has filed an action for the revocation of an administrative disposition on appeal on the grounds of illegality of the original administrative disposition, having failed to note the rule under Article 10, paragraph (2) of said Act that in an action for the revocation of an administrative disposition on appeal, the revocation of the administrative disposition on appeal may not be sought on the grounds of illegality of the original administrative disposition. The provisions of Article 20 of said Act presumably give relief to such person from the procedural handicap arising from the failure to meet the statute of limitations for filing an action for the revocation of the original administrative disposition. If a special law sets a shorter statute of limitations for filing an action for the revocation of the original administrative disposition with regard to which a request for an administrative disposition has been made in the case where such a request may be filed, in comparison with the statute of limitations for filing an action for the revocation of the administrative disposition on appeal, relief under Article 20 of the Administrative Case Litigation Act would be unavailable in some cases, whereas if these statutes of limitations are the same period according to the general provisions of said Act, relief under said Article would be available without exception, and thus it is in line with the purpose of said Article to understand that these statutes of limitations are the same period.
Consequently, where a request for an administrative review has been made with regard to an administrative disposition of the condemnation commission in the case where such a request may be made, it is reasonable to construe that the statute of limitations for filing an action for the revocation of the administrative disposition of the condemnation commission shall not be subject to the special provision under the Land Condemnation Act (Article 133, paragraph (1)), and since this Act does not contain any other applicable special provision, the general provisions under Article 14, paragraph (3) of the Administrative Case Litigation Act shall apply in accordance with the principle, and the statute of limitations for filing said action shall be within six months from the day on which the person who seeks revocation became aware of the fact that an administrative disposition on appeal was made in response to his/her request for an administrative review, and within one year from the date of the administrative disposition on appeal.
(3) According to the above, the statute of limitations for filing an action for the revocation of the Administrative Disposition on Compensation for Loss is supposed to be within six months from the day on which the appellants became aware of the fact that the Administrative Disposition on Appeal was made, and within one year from the date of the Administrative Disposition on Appeal (Article 14, paragraph (3) of the Administrative Case Litigation Act). The action for the revocation of the Administrative Disposition on Compensation for Loss was filed by additionally joining it, pursuant to the provision of the first sentence of Article 19, paragraph (1) of said Act, with the action for the revocation of the Administrative Disposition on Appeal, which was filed on January 19, 2010?within six months from the day on which the certified copy of the document of the Administrative Disposition on Appeal was served upon the appellants and they became aware of the fact that this disposition had been made, and within one year from the date of the Administrative Disposition on Appeal?, and in accordance with Article 20 of said Act, the action for the revocation of the Administrative Disposition on Compensation for Loss shall be deemed to have been filed on said date, and thus it was filed in compliance with the statute of limitations.

5. As shown above, the holdings of the court of prior instance in which it found that the action for the revocation of the Administrative Disposition on Compensation for Loss was filed after the expiration of the statute of limitations and therefore it is illegal, contain violation of laws and regulations that apparently affects the judgment. The appellants' arguments are well-grounded on this point, and the judgment in prior instance should inevitably be quashed with respect to the part concerning the appellee. Accordingly, the judgment in first instance should be revoked with respect to the quashed part of the judgment in prior instance, and the case should be remanded to the court of first instance in order to have the court examine the legality or illegality of the Administrative Disposition on Compensation for Loss, including whether or not Higashi Hiroshima City, as the project executor, is eligible to apply for an administrative disposition of the Hiroshima Prefecture Condemnation Commission, on the grounds that (i) the Direct Execution was performed pursuant to the provisions of Article 77 of the Land Adjustment Act, and the situation falls under the case set forth in Article 78, paragraph (1) of said Act, "where the project executor has relocated or removed a building, etc. pursuant to the provisions of paragraph (1) of the preceding Article, thereby causing a loss to others," and that (ii) the situation falls under the case set forth in Article 73, paragraph (3) of said Act as applied mutatis mutandis pursuant to Article 78, paragraph (3) of said Act, "where the consultation under the provisions of the preceding paragraph fails to reach an agreement."

Therefore, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices. There is a concurring opinion by Justice TAHARA Mutsuo.

The concurring opinion by Justice TAHARA Mutsuo is as follows.
In the remanded case, the issue of the legality or illegality of the Administrative Disposition on Compensation for Loss will be examined from the ground up. In order to provide a reference for examination, I would like to give supplementary comments concerning some questions identified in the case records.
(1) Whether or not there was any defect in the Direct Execution
In the process of determining whether or not the Administrative Disposition on Compensation for Loss is legal, it is necessary to first examine whether or not there was any defect in the respective procedures performed before this administrative disposition was made. In this case, the question to be examined is whether or not the Direct Execution can be deemed to have been performed pursuant to the provisions of Article 77 of the Land Adjustment Act.
According to the appellants' arguments, at the time when Higashi Hiroshima City "gave notice and made an inquiry" under paragraph (2) of said Article as of October 30, 2003, designating the time limit for relocation as February 10, 2004, the demolition and removal of the pachinko parlor, etc. that existed on the substitute land, to which the Building, etc. were to be relocated, were yet to be completed, and the date of completion of the land reclamation work, etc. scheduled thereafter was also yet to be determined (according to the fact found in the judgment in prior instance, the inspection of the completion of the land reclamation work for the substitute land was performed on March 30, 2004, after the time limit for relocation designated in said notice and inquiry (February 10, 2004)).
If the fact as argued by the appellants can be found, a doubt would arise as to whether or not it was physically possible for the appellants to relocate the Building, etc. within the time limit designated in said notice and inquiry, and if it is found that it was physically impossible for them to carry out relocation within such time limit, the notice and inquiry should be judged to be seriously defective, and this inevitably raises a doubt as to whether or not the Direct Execution can be deemed to have been performed pursuant to Article 77 of the Land Adjustment Act.
The appellants also argue that as the Building had been constructed before the Building Standards Act came into effect, they would need to obtain authorization for building construction under this Act in order to relocate the Building. If the appellants truly need authorization for building construction as they argue, Higashi Hiroshima City, in the process of determining the time limit for relocation, must take into consideration the time expected to be required for obtaining such authorization. From this standpoint as well, whether or not the notice and inquiry by the city were defective and to what extent they were defective should be examined.
(2) Whether or not the relocation under Article 78, paragraph (1) of the Land Adjustment Act has been completed
The appellants argue that the relocation of the Building has not yet been completed as provided for in Article 78, paragraph (1) of the Land Adjustment Act because the procedure prescribed in the Building Standards Act has not been performed. On this point, the judgment in prior instance explains that it is left to the project executor to determine whether or not the relocation under said paragraph has been completed, and in order to prove the completion of the relocation through the Direct Execution, it is sufficient for the project executor to determine that the subject building, etc. has been physically relocated and demonstrate this fact objectively.
However, where a building, etc. is relocated under Article 77, paragraph (7) of said Act, the owner and the possessor of the subject building, etc. may not use it during the period from commencement until completion of relocation (paragraph (8) of said Article), and they may use it only after relocation is completed. This means that if they were able to use the building in a legal state before relocation, they are supposed to be able to use the same as a legal building after relocation as well. Hence, the mere completion of physical relocation cannot immediately be deemed to be completion of relocation set forth in Article 78, paragraph (1) of said Act.
The appellants argue that the Building, which was relocated by the house-moving method, had been regarded before relocation as a building that had existed since before the Building Standards Act came into effect and therefore excluded from the application of this Act (Article 3, paragraph (2) of said Act), but the relocation thereof shall be subject to the Building Standards Act, even though it was conducted by the house-moving method.
If the Building Standards Act is applicable to the relocation of the Building as argued by the appellants, when the Building after relocation comes to be in violation of said Act, there is the possibility that the appellants would be subject to an order to take measures under Article 9 of said Act, such as removal, repair or prohibition or restriction of use, and if there is the possibility that such measures would be ordered with regard to the Building after relocation, it is doubtful whether the mere completion of physical relocation can be deemed to be completion of relocation.
The court of prior instance determined that relocation under Article 78, paragraph (1) of the Land Adjustment Act has been completed only on the grounds that physical relocation has been completed, without examining at all whether or not the Building Standards Act is applicable to the Building after relocation, and if it is applicable, whether or not the Building complies with the standards prescribed in said Act, and if it fails to comply, whether or not there is the possibility that the abovementioned measures would be ordered and to what extent such possibility exists. I must say that the court of prior instance made a slipshod determination.
In addition, if a building after relocation would be treated as an illegal building under the Building Standards Act and subject to an order of rectification, it is considerably doubtful whether it would be possible to properly calculate a "loss that would normally arise" as set forth in Article 78, paragraph (1) of the Land Adjustment Act.
I hope that the court of the remanded case will make examination sufficiently while taking into consideration the points I have mentioned above as well.

Justice TERADA Itsuro
Justice TAHARA Mutsuo
Justice OKABE Kiyoko
Justice OTANI Takehiko
Justice OHASHI Masaharu