2012.02.09

2011 (Gyo-Tsu) 177

Minshu Vol. 66, No. 2

Judgment concerning the requirements for finding the case where "serious damage is likely to be caused," as prescribed in Article 37-4, paragraph (1) of the Administrative Case Litigation Act, with regard to actions for injunctive orders against dispositions

Case to seek declaration of the nonexistence of the obligations to sing the national anthem, etc.

Judgment of the First Petty Bench, dismissed with prejudice on the merits

Tokyo High Court, Judgment of January 28, 2011

1. In order to find that "any serious damage is likely to be caused" as specified in Article 37-4, paragraph (1) of the Administrative Case Litigation Act, with regard to actions for injunctive orders against dispositions, the damage that is likely to be caused by the disposition should not be such damage that can easily be remedied by filing an action for revocation of administrative disposition and obtaining a decision of stay of execution thereof after receiving the disposition, but needs to be such damage that can hardly be remedied unless an injunction is ordered in advance before receiving the disposition.
2. With regard to the actions to seek injunctions against disciplinary actions taken on the ground of violation of the official orders issued by the school principals that require teachers and employees of public high schools, etc. to stand facing the national flag and sing the national anthem or play an accompaniment on the piano during the singing of the national anthem at ceremonies, such as a graduation ceremony, given the factual circumstances (1) and (2) below, etc., as indicated in the judgment, it is deemed that "any serious damage is likely to be caused" as specified in Article 37-4, paragraph (1) of the Administrative Case Litigation Act.
(1) In the area under the jurisdiction of the relevant local government, based on the circular notice wherein the board of education gives instructions to the principals on matters that underpin the necessity to issue the abovementioned official orders, a large number of teachers and employees of public high schools, etc. have received the abovementioned official orders upon ceremonies that are held at least twice every fiscal year.
(2) Under the principle to aggravate disciplinary actions against teachers and employees who do not follow the abovementioned official orders when they repeat the same type of violations as those for which they were subject to disciplinary actions in the past, there are risks that disciplinary actions may be taken repeatedly and continuously as well as in a cumulative and aggravating manner, according to the determination of disciplinary actions, mostly giving an admonition against first violations, imposing salary reduction upon second and third violations, and imposing suspension from duty upon a fourth violation onward.
3. The actions to seek declaration of the nonexistence of the obligations based on the official orders issued by the school principals that require teachers and employees of public high schools, etc. to stand facing the national flag and sing the national anthem or play an accompaniment on the piano during the singing of the national anthem at ceremonies, such as a graduation ceremony, are unlawful if they are considered as non-statutory actions for judicial review of administrative disposition for the purpose of preventing disciplinary actions that are highly probable to be taken on the ground of violation of the abovementioned official orders, because there are other appropriate means of litigation, under circumstances where actions for injunctive orders against the abovementioned disciplinary actions can be filed lawfully as statutory actions for judicial review of administrative disposition and the existence or nonexistence of said obligations is to be subject to judgment on the merits.
4. Given the factual circumstances (1) and (2) below, etc., as indicated in the judgment, with regard to the actions to seek declaration of the nonexistence of the obligations based on the official orders issued by the school principals that require teachers and employees of public high schools, etc. to stand facing the national flag and sing the national anthem or play an accompaniment on the piano during the singing of the national anthem at ceremonies, such as a graduation ceremony, there is the interest to seek declaration as said actions can be categorized as actions for declaratory judgment concerning a legal relationship under public law for the purpose of preventing disadvantageous treatment other than administrative dispositions from being made on the ground of violation of the abovementioned official orders.
(1) In the area under the jurisdiction of the relevant local government, based on the circular notice wherein the board of education gives instructions to the principals on matters that underpin the necessity to issue the abovementioned official orders, a large number of teachers and employees of public high schools, etc. have received the abovementioned official orders upon ceremonies that are held at least twice every fiscal year.
(2) There are risks that teachers and employees who do not follow the abovementioned official orders may receive disadvantageous treatment other than administrative dispositions, such as disadvantages in raise in salary due to unfavorable evaluation of their work performance as they are evaluated as having received disciplinary actions on the ground of their violation of said official orders or having received aggravated disciplinary actions on the ground of the accumulation of such violation, repeatedly and continuously as well as in a cumulative and aggravating manner, and that such disadvantages may expand.
(There are a dissenting opinion and concurring opinions concerning 1. to 4.)

(Concerning 1 to 3) Article 3, paragraph (7) and Article 37-4, paragraph (1) of the Administrative Case Litigation Act, and Article 29, paragraph (1) of the Local Public Service Act; (Concerning 1 and 2) Article 37-4, paragraph (2) of the Administrative Case Litigation Act; (Concerning 3) Article 3, paragraph (1) of the Administrative Case Litigation Act; (Concerning 4) Article 4 of the Administrative Case Litigation Act, and Article 40, paragraph (1) of the Local Public Service Act

Article 3, paragraph (7) of the Administrative Case Litigation Act
The term "action for an injunctive order" as used in this Act means an action seeking an order, in cases where an administrative agency is about to make a certain original administrative disposition or administrative disposition on appeal which it should not make, to the effect that the administrative agency should not make the original administrative disposition or administrative disposition on appeal.

Article 37-4, paragraph (1) of the Administrative Case Litigation Act
An action for an injunctive order may be filed only in cases where any serious damage is likely to be caused if a certain original administrative disposition or administrative disposition on appeal is made; provided, however, that this shall not apply if there are any other appropriate means to avoid such damage.

Article 29, paragraph (1) of the Local Public Service Act
(1) When a government employee falls under any of the following items, he/she may be admonished, subject to salary reduction, suspended from duty, or dismissed as a disciplinary action:
(i) when he/she has violated this Act or the laws providing for special provisions as prescribed in Article 57, or prefectural or municipal ordinances, regulations of local governments or rules defined by organizations of local governments based on said Act and laws;
(ii) when he/she has violated an obligation in the course of his/her duties or has neglected his/her duties;
(iii) when he/she is guilty of such misconduct as to render himself/herself unfit to be a servant of all citizens.

Article 37-4, paragraph (2) of the Administrative Case Litigation Act
When judging whether or not any serious damage would be caused as prescribed in the preceding paragraph, the court shall consider the degree of difficulty in recovering from the damage and shall take into consideration the nature and extent of the damage as well as the content and nature of the original administrative disposition or administrative disposition on appeal.

Article 3, paragraph (1) of the Administrative Case Litigation Act
The term "action for the judicial review of an administrative disposition" as used in this Act means an action to appeal against the exercise of public authority by an administrative agency.

Article 4 of the Administrative Case Litigation Act
The term "public law-related action" as used in this Act means an action relating to an original administrative disposition or administrative disposition on appeal that confirms or creates a legal relationship between parties, wherein either party to the legal relationship shall stand as a defendant pursuant to the provisions of laws and regulations, an action for a declaratory judgment on a legal relationship under public law and any other action relating to a legal relationship under public law.

Article 40, paragraph (1) of the Local Public Service Act
The work performance of government employees shall be periodically evaluated by their appointer, who shall take appropriate measures as may be called for by the findings of the evaluation.

The final appeals are dismissed with prejudice on the merits.
The appellants of final appeals shall bear the cost of the final appeals.

I. Outline of the facts in this case
1. Out of the appellants of final appeals in this case, i.e. those who are currently in service as teachers or employees (including music teachers) at Tokyo Metropolitan high schools or schools for special needs education (which were referred to as schools for the blind, schools for the deaf, or schools for the disabled up until March 2007; hereinafter these schools including Tokyo Metropolitan high schools shall be collectively referred to as the "Tokyo Metropolitan Schools") and those who used to work as teachers or employees at said schools and have already retired, those appellants who are currently in service (i) seek declaratory judgment that they are not obliged to stand facing the national flag and sing the national anthem or to play an accompaniment on the piano during the singing of the national anthem at ceremonies held at respective schools, such as a graduation ceremony or enrollment ceremony, and (ii) seek injunctions against the disciplinary actions taken on the ground of their refusal to stand facing the national flag, sing the national anthem, or play an accompaniment on the piano during the abovementioned singing of the national anthem, against the appellee of final appeals, the Tokyo Metropolitan Board of Education (hereinafter referred to as the "appellee Tokyo BOE" in the capacity of the appellee, and as the "Tokyo BOE" in the capacity of the administrative agency that renders administrative dispositions) under the Administrative Case Litigation Act prior to the revision by Act No. 84 of 2004 (hereinafter Act No. 84 of 2004 shall be referred to as the "Revision Act" and the Administrative Case Litigation Act prior to the revision by said Act shall be referred to as the "Former Administrative Case Litigation Act") and against the appellee, the Tokyo Metropolitan Government under the Administrative Case Litigation Act as revised by the Revision Act (hereinafter referred to as the "Administrative Case Litigation Act"), respectively. Furthermore, all of the appellants seek damages, such as solatia, under Article 1, paragraph (1) of the State Redress Act against the appellee Tokyo Metropolitan Government, alleging that the circular notice issued by the Tokyo BOE and the official orders issued by the principals of the respective schools concerning the abovementioned act of standing and singing, or of playing an accompaniment on the piano during the singing of the national anthem are unconstitutional and illegal and they suffered psychological damage due to said circular notice and official orders (hereinafter their claims for damages shall be referred to as the "Claims for Damages").
Regarding the actions for declaratory judgment mentioned in (i) above and the actions for injunctive orders mentioned in (ii) above, the appeals targeted only the portions upheld by the court of the first instance as the actions filed with the intention to seek declaration of the nonexistence of the abovementioned obligations based on the abovementioned official orders and as the actions filed with the intention to seek injunctions against the disciplinary actions taken on the ground of their refusal to follow the abovementioned official orders. After the court of prior instance rendered the judgment to dismiss the appeals without prejudice and the appellants filed the final appeals, said portions are now subject to review by this court. Hereinafter, out of the actions for declaratory judgment mentioned in (i) above, the portion of the actions with the former intention subject to review by this court shall be referred to as the "Actions for Declaratory Judgment," and out of the actions for injunctive orders mentioned in (ii) above, the portion of the actions with the latter intention subject to review by this court shall be referred to as the "Actions for Injunctive Orders."

2. The outline of the facts legally determined by the court of prior instance is as follows.
(1) Chapter 4, II-C(1) of the Courses of Study for High Schools (Public Notice of the Ministry of Education No. 58 of 1999; prior to the application of the special provisions under Public Notice of the Ministry of Education, Culture, Sports, Science and Technology No. 38 of 2009; the same shall apply hereinafter), established under the provisions of Article 43 of the School Education Act (prior to the revision by Act No. 96 of 2007) and Article 57-2 of the Ordinance for Enforcement of the School Education Act (prior to the revision by Ordinance of the Ministry of Education, Culture, Sports, Science and Technology No. 40 of 2007), specifies "ceremonial events" which are included in "school events" within the category of "special activities," which forms the curricula together with another category of activities, "coursework," and according to this specification, "ceremonial events" means "to conduct activities that will give meaningful variations and breakpoints to school life, enable students to enjoy a solemn and fresh atmosphere, and motivate them to make a start for new school life." In III-3 of this chapter, entitled "Development of teaching plans and treatment thereof" under "Special Activities," it is provided that "In the enrollment ceremony, graduation ceremony, etc., schools shall, in light of the significance thereof, hoist the national flag and instruct students to sing the national anthem." Chapter 5 of the Courses of Study for High Schools (Public Notice of the Ministry of Education, Culture, Sports, Science and Technology No. 34 of 2009), established under the provisions of Article 52 of the present School Education Act and Article 84 of the present Ordinance for Enforcement of the School Education Act, specifies the same. Furthermore, Chapter 4 of the Courses of Study for Senior High School Courses of Schools for the Blind, Schools for the Deaf, and School for the Disabled (Public Notice of the Ministry of Education No. 62 of 1999; prior to the revision by Public Notice of the Ministry of Education, Culture, Sports, Science and Technology No. 46 of 2007), established under the provisions of Article 73 of the School Education Act (prior to the revision by Act No. 80 of 2006) and Article 73-10 of the Ordinance for Enforcement of the School Education Act (prior to the revision by Ordinance of the Ministry of Education, Culture, Sports, Science and Technology No. 5 of 2007), specifies that "the objective and content of special activities, as well as the development of teaching plans and treatment thereof shall be equivalent to what are specified in Chapter 4 of the Courses of Study for High School." Chapter 5 of the Courses of Study for Schools for Special Needs Education (Public Notice of the Ministry of Education, Culture, Sports, Science and Technology No. 37 of 2009), established under the provisions of Article 77 of the present School Education Act and Article 129 of the present Ordinance for Enforcement of the School Education Act, specifies the same (hereinafter these Courses of Study, including the Courses of Study for High Schools, throughout the period before and after the abovementioned revisions, shall be collectively referred to as the "Courses of Study").
(2) The Chair of the Tokyo BOE, as of October 23, 2003, issued a circular notice to the principals of the Tokyo Metropolitan Schools, entitled "Circular Notice on the Implementation of the Hoisting of the National Flag and the Singing of the National Anthem in the Enrollment Ceremony, Graduation Ceremony, etc." (hereinafter referred to as the "Circular Notice"). It notified the school principals that (i) they should hold an enrollment ceremony, graduation ceremony, etc. properly in accordance with the Courses of Study; that (ii) when holding an enrollment ceremony, graduation ceremony, etc., they should follow the prescribed implementation guidelines, such as that the national flag shall be hoisted at the front on the stage in the ceremony hall, and teachers and employees shall stand up at the designated seats in the ceremony hall, facing the national flag, and sing the national anthem, which should be accompanied by piano, etc.; and that (iii) they should make it known to teachers and employees that those who have failed to follow official orders issued by the principals in line with the Circular Notice will be held responsible for public service.
(3)A. Based on the Circular Notice, on each occasion of graduation ceremonies, enrollment ceremonies, etc. held on and after March 2004 after the issuance of the circular notice, the principals of the Tokyo Metropolitan Schools have issued official orders to a large number of teachers and employees to require them to stand facing the national flag and sing the national anthem during the singing of the national anthem, and have issued official orders to a certain number of music teachers to require them to play an accompaniment on the piano during the singing of the national anthem (hereinafter these official orders, including those to be issued in the future, shall be collectively referred to as "Official Orders").
B. With regard to a total of 173 teachers and employees of the Tokyo Metropolitan Schools, who did not follow the Official Orders issued by the principals of the relevant schools and did not stand or play an accompaniment on the piano during the singing of the national anthem at graduation ceremonies held at the respective schools in March 2004, the Tokyo BOE gave them an admonition on March 30 and 31 and May 25, 2004, on the ground of their violation of official orders. Furthermore, with regard to a total of 20 teachers and employees of the Tokyo Metropolitan Schools, as well as municipal junior high schools and elementary schools in Tokyo, who did not follow the Official Orders or similar official orders issued by the principals of the relevant schools and did not stand during the singing of the national anthem at graduation ceremonies held at the respective schools in March 2004, the Tokyo BOE, on April 6, 2004, gave an admonition to 19 of them and penalized one of them, who had once received an admonition, with a 10% salary reduction for a month, on the ground of their violation of official orders.
C. Starting with those mentioned in B. above, since the issuance of the Circular Notice, the Tokyo BOE has taken disciplinary actions with regard to a large number of teachers and employees of the Tokyo Metropolitan Schools who have violated official orders, such as that they did not follow the Official Orders issued by the principals of the relevant schools and did not stand during the singing of the national anthem at graduation ceremonies and enrollment ceremonies, etc. held at the respective schools. Disciplinary actions are determined based on the principle to aggravate penalties when a person who had once committed a violation and received a disciplinary action has repeated a similar violation. Generally, those who commit a violation for the first time are to be admonished, those who commit a violation for the second or third time are to be penalized with a salary reduction, and those who commit a violation for the fourth time onward are to be suspended from duty. Those who had received other disciplinary actions before are to be given severer penalties, but there has been none who was dismissed so far.
(4) Out of the appellants, those entered in Lists of Appellants 1 and 2 attached hereto are currently in service as teachers and employees at the Tokyo Metropolitan Schools, out of whom those entered in List 2 are music teachers, while those entered in Lists of Appellants 3 and 4 attached hereto are retirees who used to work as teachers and employees at the Tokyo Metropolitan Schools (including those who transferred to municipal boards of education and those who were rehired).

3. The court of prior instance determined that the Actions for Declaratory Judgment against the appellees were all non-statutory actions for judicial review of administrative disposition (meaning actions for judicial review of administrative disposition that are not specified as individual types of actions in Article 3, paragraph (2) and the following of the Administrative Case Litigation Act; the same shall apply hereinafter) and that the Actions for Injunctive Orders against the appellees were all actions for injunctive orders, which are categorized as one of the types of statutory actions for judicial review of administrative disposition (meaning actions for judicial review of administrative disposition that are specified as individual types of actions in Article 3, paragraph (2) onward of the Administrative Case Litigation Act; the same shall apply hereinafter) (the Actions for Injunctive Orders against the appellee Tokyo BOE have turned to be actions for injunctive orders under the Administrative Case Litigation Act as a result of the enforcement of the Revision Act). The court of prior instance further determined that the Circular Notice was inseparably connected with the Official Orders and has generated legal effects in that teachers and employees subject to the Official Orders are to receive disciplinary actions with some conditions, which fall under the category of administrative dispositions for which actions for judicial review may be filed. If the appellants file an action for revocation of the Circular Notice or an action for declaratory judgment on the nullity of the Circular Notice (hereinafter referred to as "actions for revocation of administrative disposition, etc.") to seek stay of execution thereof, they may definitely be able to avoid both having imposed on them the obligations in public service (meaning obligations in relation to duties of government employees who are engaged in public service; the same shall apply hereinafter) to stand and sing the national anthem or play an accompaniment on the piano during the singing of the national anthem based on the Official Orders, which are inseparably connected with the Circular Notice, and also avoid receiving disciplinary actions on the ground of their violation of said obligations in public service. Consequently, the court of prior instance ruled that the Actions for Declaratory Judgment and the Actions for Injunctive Orders are all unlawful because it cannot be said that there are no other appropriate means to avoid damages alleged by the appellants, and dismissed all of them without prejudice; and also dismissed all of the Claims for Damages with prejudice on the merits, holding that it cannot be said that the Circular Notice, which is inseparably connected with the Official Orders, is unconstitutional and illegal.

II. Concerning the reasons for final appeals argued by the appeal counsels, OYAMA Hiroshi, et al.
1. Concerning the part of the reasons for final appeals which asserts violation of Article 19 of the Constitution
Under the facts legally determined by the court of prior instance, the Official Orders issued by the principals of the Tokyo Metropolitan Schools to the teachers and employees of their schools are not in violation of Article 19 of the Constitution, and as explained in I.2.(2) above, the Circular Notice, in which the Tokyo BOE gives instructions to the principals of the Tokyo Metropolitan Schools on matters that underpin the necessity to issue the Official Orders, does not pose a problem of violating said Article in relation to those teachers and employees. This conclusion is clear from the purports of the precedents of the Grand Bench of this court to date (1953 (O) No. 1241, judgment of the Grand Bench of the Supreme Court of July 4, 1956, Minshu Vol. 10, No. 7, at 785; 1969 (A) No. 1501, judgment of the Grand Bench of the Supreme Court of November 6, 1974, Keishu Vol. 28, No. 9, at 393; 1968 (A) No. 1614, judgment of the Grand Bench of the Supreme Court of May 21, 1976, Keishu Vol. 30, No. 5, at 615; 1969 (A) No. 1275, judgment of the Grand Bench of the Supreme Court of May 21, 1976, Keishu Vol. 30, No. 5, at 1178). (For official orders concerning the act of standing and singing, see 2010 (O) No. 951, judgment of the First Petty Bench of the Supreme Court of June 6, 2011, Minshu Vol. 65, No. 4, at 1855; 2010 (Gyo-Tsu) No. 54, judgment of the Second Petty Bench of the Supreme Court of May 30, 2011, Minshu Vol. 65, No. 4, at 1780; 2010 (Gyo-Tsu) No. 314, judgment of the Third Petty Bench of the Supreme Court of June 14, 2011, Minshu Vol. 65, No. 4, at 2148; and 2010 (Gyo-Tsu) No. 372, judgment of the Third Petty Bench of the Supreme Court of June 21, 2011, Saibanshu Minji No. 237, at 53; for official orders concerning the act of playing an accompaniment on the piano, see 2004 (Gyo-Tsu) No. 328, judgment of the Third Petty Bench of the Supreme Court of February 27, 2007, Minshu Vol. 61, No. 1, at 291.) The determination of the court of prior instance on the points argued by the appeal counsels can be affirmed, and the appeal counsels' arguments cannot be accepted.

2. Concerning other reasons for final appeals
The reasons for final appeals argued by the appeal counsels, alleging violation of the Constitution, are in effect assertions of unappealable violation of laws and regulations, or ungrounded assertions, and none of these assertions can be regarded as a reason for final appeals under Article 312, paragraph (1) or paragraph (2) of the Code of Civil Procedure.

III. Concerning Part II, Chapter 1 of the reasons for petition for acceptance of final appeals argued by the appeal counsels, OYAMA Hiroshi, et al.
1. (1) Out of the Actions for Declaratory Judgment, those against the appellee Tokyo BOE were filed as non-statutory actions for judicial review of administrative disposition. With regard to those against the appellee Tokyo Metropolitan Government, on the other hand, the appellants entered in Lists of Appellants 1 and 2 attached hereto principally allege that said actions are non-statutory actions for judicial review of administrative disposition, and alternatively allege that if they are unlawful as non-statutory actions for judicial review of administrative disposition but are lawful as public law-related actions, they should be recognized as the latter type of actions. Out of the Actions for Injunctive Orders, those against the appellee Tokyo Metropolitan Government were filed, from the beginning, as actions for injunctive orders which are categorized as statutory actions for judicial review of administrative disposition under the Administrative Case Litigation Act, and it is construed that as a result of the enforcement of the Revision Act, the actions filed against the appellee Tokyo BOE under the Former Administrative Case Litigation Act have also turned to be actions for injunctive orders which are categorized as statutory actions for judicial review of administrative disposition under the Administrative Case Litigation Act, pursuant to Articles 2 and 3 of the Supplementary Provisions of the Revision Act.
In light of the content of the claims mentioned in I.1. above, the abovementioned actions have been filed for the purpose of preventing disadvantage, respectively, such as receiving disciplinary actions on the ground of the refusal to follow the Official Orders issued in line with the Circular Notice. Therefore, it can be construed that the Actions for Declaratory Judgment seek declaration of the nonexistence of the obligations in public service imposed based on the Official Orders and the Actions for Injunctive Orders seek injunctions against disciplinary actions taken on the ground of violation of the Official Orders, for the abovementioned purpose. As the premise for considering what types of actions are appropriate as means for litigation for such purpose, we will first examine whether the Circular Notice has the nature of an administrative disposition.
(2) As is clearly detailed in I.2.(2) above, the Circular Notice was issued by the Tokyo BOE, which is the higher administrative body, to the principals of the Tokyo Metropolitan Schools, its related lower administrative bodies, for the purpose of directing the exercise of their official authority, based on its management and enforcement authority with regard to school curricula and education guidance, etc. specified in Article 23, item (v) of the Act on the Organization and Operation of Local Educational Administration and in line with the Courses of Study. It was not addressed to individual teachers and employees, nor did it impose any concrete obligations on individual teachers and employees by itself without needing to wait for the issuance of the Official Orders. As explained in I.2.(2) above, the Circular Notice indicates matters that underpin the necessity to issue the Official Orders to the school principals and has wording to the effect they should make it known to teachers and employees that those who have failed to follow said orders will be held responsible for public service, and this can be construed to be based on the premise that the performance of the act of standing and singing or playing an accompaniment on the piano during the singing of the national anthem is to be ensured by official orders as needed. However, the Circular Notice does not include any wording to order the issuance of the Official Orders or to indicate the scope thereof, and it can be construed that it is left to the discretion of individual principals to determine the concrete scope of the teachers and employees of their schools to whom they issue the Official Orders in accordance with the individual circumstances of each ceremony and each teacher and employee. As mentioned above, the Circular Notice does not limit the means to hold teachers and employees responsible for their violation of the Official Orders only to disciplinary actions, but uses expressions to implicitly include a reprimand or a reproof, and adopts a stance, as a premise, to leave it to the discretion of the Tokyo BOE to determine concrete means for calling relevant teachers and employees to account in accordance with the individual circumstances of each of them. Even taking into consideration the details of the instruction from the Tokyo BOE to the respective principals via the principals' liaison meeting, etc., as pointed out by the court of prior instance, the existence of such discretion in line with the wording and nature of the Circular Notice in itself cannot be denied. Accordingly, the Circular Notice cannot be deemed to be equal to the Official Orders as being inseparably connected with them, nor can it be deemed to generate legal effects in that teachers and employees subject to the Official Orders are to receive disciplinary actions with some conditions.
Then, in relation to individual teachers and employees, the Official Orders are issued at the discretion of the principals based on the Circular Notice, and it is not until a disciplinary action was taken for the violation of the Official Orders at the discretion of the Tokyo BOE that an administrative disposition has been rendered which may directly affect the rights and obligations of individual teachers and employees relating to their status and working conditions. Otherwise, the Circular Notice remains nothing more than an instruction or order issued by the Tokyo BOE, which is positioned as the higher administrative body within the administrative organization, to the principals of the Tokyo Metropolitan Schools, its related lower administrative bodies, and is not legally allowed to formulate the rights and obligations of individual teachers and employees or determine the scope thereof by itself. Therefore, the Circular Notice in itself does not fall under the category of administrative dispositions for which actions for judicial review may be filed (1964 (Gyo-Tsu) No. 87, judgment of the Third Petty Bench of the Supreme Court of December 24, 1968, Minshu Vol. 22, No. 13, at 3147). In addition, the Official Orders only present official instructions of the principals as a superior concerning how teachers and employees should perform their duties as public educational personnel at ceremonial events held at the Tokyo Metropolitan Schools, which fall under the category of special activities that forms the curricula together with another category of activities, coursework. They do not directly affect the rights and obligations of individual teachers and employees relating to their status and working condition, and therefore are not deemed to be administrative dispositions for which actions for judicial review may be filed. Teachers and employees subject to disciplinary actions taken on the ground of their violation of the Official Orders may contest the legality of the Official Orders issued in line with the Circular Notice through such means as an action for revocation of the disciplinary actions, and may also contest it through other means of litigation for an ex-ante remedy under the circumstances of this case, as explained later. Then, the abovementioned construction concerning whether the Circular Notice and the Official Orders have the nature of administrative dispositions cannot be deemed to lack the effectiveness to save the rights and interests in terms of means of litigation.

2. (1) Given these findings, we will examine the legality of the Actions for Injunctive Orders against the appellees as actions for injunctive orders which are categorized as statutory actions for judicial review of administrative disposition.
A. As one of the requirements for filing an action for an injunctive order categorized as a statutory action for judicial review of administrative disposition, it is firstly necessary that a certain original administrative disposition is to be made (Article 3, paragraph (7) of the Administrative Case Litigation Act), that is, it is probable that an administrative agency will make a certain original administrative disposition. This is the premise to underpin the necessity of remedy.
The claims for the Actions for Injunctive Orders are to seek injunctions against disciplinary actions taken on the ground of violation of the Official Orders, or specifically, to seek injunctions against the dismissal, suspension from duty, salary reduction, or admonition. In this case, as explained in I.2.(3)C. above, since the issuance of the Circular Notice, the Tokyo BOE has taken disciplinary actions when teachers and employees of the Tokyo Metropolitan Schools have violated the Official Orders, and generally, those who have committed a violation for the first time were admonished, those who committed a violation for the second or third time were penalized with a salary reduction, and those who committed a violation for the fourth time onward were suspended from duty. Although teachers and employees who had received other disciplinary actions before were given severer penalties, there has been none who was dismissed so far. As long as there are no circumstances suggesting the possibility that teachers and employees are to be given even severer penalties exceeding the levels of the past ones, it is found to be probable that teachers and employees of the Tokyo Metropolitan Schools will be subject to disciplinary actions other than dismissal (suspension from duty, salary reduction, or admonition) for their violation of the Official Orders issued in line with the Circular Notice, while it is not found to be probable that they will be dismissed for the same. Then, the actions to seek injunctions against dismissal out of the Actions for Injunctive Orders lack the probability of dismissal being made, and are therefore unlawful.
B. Next, we will examine the lawfulness of the actions to seek injunctions against disciplinary actions other than dismissal (suspension from duty, salary reduction, or admonition) out of the Actions for Injunctive Orders. As another requirement for filing an action for an injunctive order, it is necessary that "any serious damage is likely to be caused" by the administrative disposition (Article 37-4, paragraph (1) of the Administrative Case Litigation Act), and when judging whether or not any serious damage would be caused, the court shall consider the degree of difficulty in recovering from the damage and shall take into consideration the nature and extent of the damage as well as the content and nature of the original administrative disposition (paragraph (2) of said Article).
It is construed that if the court is to make a judgment on the legality of an administrative disposition and orders an injunction thereagainst before an administrative agency makes the disposition, there must be sufficient need for remedy to the extent that such judgment and measures should be made in advance from the perspective of ensuring both the effective remedy for people's rights and interests and the proper balance between powers of the judiciary and the administration. Therefore, it is appropriate to construe that in order to find that any serious damage is likely to be caused, which is one of the requirements for filing an action for an injunctive order, the damage that is likely to be caused by the disposition should not be such damage that can easily be remedied by filing an action for revocation of administrative disposition and obtaining a decision of stay of execution thereof after receiving the disposition, but it needs to be such damage that can hardly be remedied unless an injunction is ordered before receiving the disposition.
In this case, as explained in I.2.(3) above, the Official Orders have been issued in line with the Circular Notice repeatedly to a large number of teachers and employees at least twice every fiscal year on occasions of graduation ceremonies, enrollment ceremonies, etc. held at the Tokyo Metropolitan Schools, and disciplinary actions for violation of the Official Orders have been accumulated and aggravated to a level where suspension from duty is to be given for those who have committed a violation mostly for the fourth time (or for the third time or less in the case of a teacher or employee who had received other disciplinary actions before). Under such circumstances where there exists the actual risk that disciplinary actions may be taken repeatedly and continuously as well as in a cumulative and aggravating manner based on the Circular Notice, if disciplinary actions are taken as described above (i.e. repeatedly and continuously as well as in a cumulative and aggravating manner) upon occasions of school ceremonies that are held at least twice every fiscal year, during the period of time required due to the nature of the case until a judgment on an action for revocation of administrative disposition becomes final and binding, it would be extremely difficult to recover damage ex-post facto. Considering this, damage that may be caused by a series of repeated disciplinary actions taken on the ground of violation of the Official Orders issued in line with the Circular Notice cannot be deemed to be such damage that can easily be remedied by filing an action for revocation of administrative disposition and obtaining a decision of stay of execution thereof after receiving the disposition, but it is deemed to be such damage that can hardly be remedied unless injunction is ordered before receiving the disposition. In light of the extent of the difficulty in recovering the damage, it should be concluded that any serious damage is likely to be caused with regard to the Actions for Injunctive Orders.
C. As another requirement for filing an action for an injunctive order, it is provided that there are no other appropriate means to avoid such damage, that is, the requirement of supplementary means needs to be satisfied (the proviso to Article 37-4, paragraph (1) of the Administrative Case Litigation Act). The court of prior instance admitted that the Circular Notice falls under the category of administrative dispositions, but dismissed all of the Actions for Injunctive Orders without prejudice, holding that they fail to satisfy the requirement of supplementary means in relation to actions for revocation of administrative disposition and stay of execution thereof. However, as explained in 1.(2) above, the Circular Notice and the Official Orders do not fall under the category of administrative dispositions, and are not subject to actions for revocation of administrative disposition and stay of execution thereof. Furthermore, as explained in B. above, it is construed in this case that the requirement of supplementary means is satisfied in relation to actions for revocation of disciplinary actions and stay of execution thereof. In addition, it cannot be said that there are any other appropriate means of litigation for an ex-ante remedy to prevent disciplinary actions, and therefore, the actions to seek injunctions against disciplinary actions other than dismissal out of the Actions for Injunctive Orders can be deemed to satisfy the requirement of supplementary means.
D. As long as the actions were filed by the appellants set forth in 1.(1) above, who are currently in service as teachers or employees, for the purpose of seeking injunctions against disciplinary actions, it is clear that the abovementioned appellants have legal interest to seek injunctive orders (Article 37-4, paragraph (3) of the Administrative Case Litigation Act).
E. Given these findings, the actions to seek injunctions against disciplinary actions other than dismissal out of the Actions for Injunctive Orders against the appellees should be all deemed to be lawful.
(2) Then, we will examine whether the claims for the actions to seek injunctions against disciplinary actions other than dismissal out of the Actions for Injunctive Orders against the appellees (hereinafter referred to as "said claims to seek injunctive orders") are appropriate or not.
A. As one of the requirements for actions for injunctive orders on the merits (meaning the requirements for the claims to be upheld by the judgment on the merits; the same shall apply hereinafter), there must be a finding that the provisions of the laws and regulations which give a basis for an original administrative disposition clearly show that the administrative agency should not make the original administrative disposition (Article 37-4, paragraph (5) of the Administrative Case Litigation Act), and in connection with said claims to seek injunctive orders, the existence or nonexistence of the obligations in public service based on the Official Orders becomes an issue as the premise of determining whether the disciplinary actions taken on the ground of violation of the Official Orders are appropriate or not. In this regard, as explained in II. above, it cannot be said that the Official Orders are unconstitutional and void and therefore the obligations in public service based thereon do not exist, so said claims to seek injunctive orders cannot be deemed to satisfy the abovementioned requirement on the merits. The reasons for petition for acceptance of final appeals concerning the legality of the Official Orders were excluded by the decision on the acceptance of the final appeals.
B. With regard to administrative dispositions made at the discretion of an administrative agency, as another requirement for actions for injunctive orders on the merits, there must be a finding that the administrative agency's act to make the original administrative disposition goes beyond the bounds of the agency's discretionary power or constitutes an abuse of such power (Article 37-4, paragraph (5) of the Administrative Case Litigation Act), and this can be construed as requiring a finding that given the concrete facts of each case, the administrative agency's act to make said administrative disposition goes beyond the bounds of the agency's discretionary power or constitutes an abuse of such power .
Considering this point in this case, this Petty Bench has already held that it is hard to construe that the admonition given on the ground of violation of the Official Orders was illegal as it went beyond the bounds of the discretionary power vested in the person authorized to take disciplinary actions or constituted an abuse of such power (2011 (Gyo-Tsu) No. 263 and 2011 (Gyo-Hi) No. 294, judgment of January 16, 2012, Saibansho Jiho No. 1547, at 10), and the claims to seek injunctions against admonition out of said claims to seek injunctive orders cannot be deemed to satisfy the abovementioned requirement on the merits. Furthermore, this Petty Bench has also held that whether or not the salary reduction or suspension from duty given on the ground of violation of the Official Orders was illegal as it went beyond the bounds of the discretionary power vested in the person authorized to take disciplinary actions or constituted an abuse of such power depends on the individual and concrete circumstances of each teacher or employee as of the time when the relevant disciplinary action was taken in each case (2011 (Gyo-Tsu) No. 263 and 2011 (Gyo-Hi) No. 294, judgment of January 16, 2012, and 2011 (Gyo-Tsu) No. 242 and 2011 (Gyo-Hi) No. 265, judgment of January 16, 2012, Saibansho Jiho No. 1547, at 3). Accordingly, in this case, it is impossible to judge immediately at this point in time whether any of the disciplinary actions goes beyond the administrative agency's discretionary power or constitutes an abuse of such power, unless due consideration is given to the individual and concrete circumstances of each of the appellants as of the time when the relevant disciplinary action is taken in the future. As no individual or concrete circumstances that enable such judgment to be made for each of the appellants at this point in time have been identified nor asserted or proved in this case, the claims to seek injunctions against salary reduction or suspension from duty out of said claims to seek injunctive orders cannot be deemed to satisfy the abovementioned requirement on the merits.
C. Thus, said claims to seek injunctive orders fail to satisfy both of the requirements on the merits mentioned in A. and B. above and are groundless.
(3) Consequently, we can affirm the ruling of the court of prior instance, in its conclusion, that dismissed without prejudice the actions to seek injunctions against dismissal out of the Actions for Injunctive Orders against the appellees. The part of the judgment in prior instance, which dismissed without prejudice the actions to seek injunctions against disciplinary actions other than dismissal by finding them to be unlawful, goes against the law, containing errors in construction and application of laws and regulations in this point, and the appeal counsels' arguments have the grounds to that extent, but as long as said claims to seek injunctive orders are groundless and should inevitably be dismissed with prejudice on the merits, we have no choice but to also dismiss the final appeals with prejudice on the merits, with regard to the abovementioned actions, based on the principle of prohibition of change for the worse [reformatio in peius] (see Article 7 of the Administrative Case Litigation Act, and Article 313 and Article 304 of the Code of Civil Procedure; the same shall apply hereinafter), and the abovementioned illegality in the judgment in prior instance does not affect the conclusion.

3.(1) Next, we will examine the lawfulness of the Actions for Declaratory Judgment against the appellees filed as non-statutory actions for judicial review of administrative disposition.
Non-statutory actions for judicial review of administrative disposition are actions to make objections to administrative dispositions, and as explained in 1.(2) above, as long as neither the Circular Notice nor the Official Orders falls under the category of administrative dispositions for which actions for judicial review of administrative disposition may be filed, it is proper to construe that the Actions for Declaratory Judgment against the appellees filed as non-statutory actions for judicial review of administrative disposition should be recognized as non-statutory actions for judicial review of administrative disposition for the purpose of preventing disciplinary actions, which are adverse dispositions, from being taken in the future. In substance, it can be said that the actions to seek injunctions against disciplinary actions taken on the ground of violation of the Official Orders have been converted into the form of actions for declaratory judgment on the existence or nonexistence of the obligations in public service based on the Official Orders. The Administrative Case Litigation Act specifies types of statutory actions for judicial review of administrative disposition, and the Revision Act introduces mandamus actions and actions for injunctive orders, which had not been provided by law as individual types of actions, as new types of statutory actions for judicial review of administrative disposition. With regard to actions for injunctive orders, which are provided as a statutory means of litigation for an ex-ante remedy to prevent future adverse dispositions, the revised Administrative Case Litigation Act excludes the case where "there are any other appropriate means to avoid such damage" (the proviso to Article 37-4, paragraph (1)), thus providing for the requirement of supplementary means for filing an action for an injunctive order. In light of this, actions to seek declaration of the nonexistence of the obligations in public service based on official orders filed as non-statutory actions for judicial review of administrative disposition for the purpose of preventing adverse dispositions from being made on the ground of violation of the official orders should also satisfy the requirement of supplementary means in the same manner as mentioned above. Accordingly, it is appropriate to construe that whether or not such actions satisfy the requirement of supplementary means as a means of litigation for an ex-ante remedy becomes an issue in particular in relation to actions for injunctive orders, which are statutory actions for judicial review of administrative disposition.
In this case, as explained in 2. above, as long as actions to seek injunctions against disciplinary actions that are probable to be taken on the ground of violation of the Official Orders may be filed lawfully as statutory actions for judicial review of administrative disposition, and the existence or nonexistence of the obligations in public service based on the Official Orders is subject to a judgment on the merits, the Actions for Declaratory Judgment to seek declaration of the nonexistence of the obligations in public service based on the Official Orders, when filed as non-statutory actions for judicial review of administrative disposition for the purpose of preventing disciplinary actions, fail to satisfy the requirement of supplementary means as a means of litigation for an ex-ante remedy in relation to actions for injunctive orders, which are statutory actions for judicial review of administrative disposition, and should be deemed to be unlawful because there are other appropriate means of litigation.
(2) Concerning the Actions for Declaratory Judgment against the appellee Tokyo Metropolitan Government, the appellants set forth in 1.(1) above, as explained in 1.(1) above, principally allege that said actions are non-statutory actions for judicial review of administrative disposition, and alternatively allege that if they are unlawful as non-statutory actions for judicial review of administrative disposition but are lawful as public law-related actions, they should be recognized as the latter type of actions. Therefore, we will further examine the lawfulness of said actions as public law-related actions under public law (with regard to the Actions for Declaratory Judgment against the appellee Tokyo BOE, there is no room for them to constitute legal public law-related actions under public law in terms of the standing to be sued).
As mentioned in (1) above, when the Actions for Declaratory Judgment against the appellee Tokyo Metropolitan Government are structured as actions to make objections to administrative dispositions, they should be recognized as non-statutory actions for judicial review of administrative disposition for the purpose of preventing disciplinary actions, which are adverse dispositions, from being taken in the future. However, the existence of the obligations in public service based on the Official Orders issued in line with the Circular Notice may cause actual risks to the legal status of teachers and employees of the Tokyo Metropolitan Schools, in that there are risks that they may receive disadvantageous treatment other than administrative dispositions, such as disadvantages in raise in salary due to unfavorable evaluation of their work performance as they are evaluated as having received disciplinary actions on the ground of their violation of said obligations in public service. Therefore, when the Actions for Declaratory Judgment against the appellee Tokyo Metropolitan Government are structured as actions for the purpose of preventing such disadvantageous treatment other than administrative dispositions, they may be recognized as actions for declaratory judgment concerning a legal relationship under public law, which fall under a type of public law-related actions under public law (Article 4 of the Administrative Case Litigation Act). As explained in 1.(2) above, as long as the Official Orders by themselves do not fall under the category of administrative dispositions for which actions for judicial review of administrative disposition may be filed, it is not possible, either, to deem the Actions for Declaratory Judgment to be non-statutory actions for judicial review of administrative disposition to seek declaration of the nonexistence of the obligations based on orders issued by the administrative agency, which fall under the category of administrative dispositions. Accordingly, it cannot be said that the Actions for Declaratory Judgment against the appellee Tokyo Metropolitan Government may only be structured as non-statutory actions for judicial review of administrative disposition.
In this case, as explained in I.2.(3) above, the Official Orders have been issued in line with the Circular Notice repeatedly to a large number of teachers and employees at least twice every fiscal year on occasions of graduation ceremonies, enrollment ceremonies, etc. held at the Tokyo Metropolitan Schools, and the existence of the obligations in public service based thereon may cause actual risks to the legal status of the abovementioned appellants, who are currently in service as teachers or employees at the Tokyo Metropolitan Schools, in that there are risks that they may receive disadvantageous treatment other than administrative dispositions, such as disadvantages in raise in salary due to unfavorable evaluation of their work performance as they are evaluated as having received disciplinary actions on the ground of their violation of said obligations in public service or having received aggravated disciplinary actions on the ground of the accumulation of such violation, and that such disadvantages may expand. Under such circumstances where there are risks that disadvantageous treatment may be given repeatedly and continuously as well as in a cumulative and aggravating manner based on the Circular Notice, and that such disadvantages may expand, if disadvantageous treatment is given as described above (i.e. repeatedly and continuously as well as in a cumulative and aggravating manner) upon occasions of school ceremonies that are held at least twice every fiscal year, and such disadvantages expand, it would be extremely difficult to recover damage ex-post facto. Considering this, the Actions for Declaratory Judgment to seek declaration of the nonexistence of the obligations in public service based on the Official Orders may be deemed to be an effective and appropriate means of litigation as actions for declaratory judgment concerning a legal relationship under public law for the purpose of preventing disadvantageous treatment other than administrative dispositions, and the interest to seek declaration can be found with regard to said actions. Therefore, we should say that the Actions for Declaratory Judgment against the appellee Tokyo Metropolitan Government are lawful as public law-related actions under public law for the abovementioned purport.
(3) Then, we will examine whether the claims for the Actions for Declaratory Judgment against the appellee Tokyo Metropolitan Government filed as public law-related actions under public law are appropriate or not. The subject matter of the claims for declaration is whether or not the obligations in public service based on the Official Orders exist. As explained in II. above, it cannot be said that the Official Orders are unconstitutional and void and therefore the obligations in public service based thereon do not exist, so the abovementioned claims for the actions are groundless. As mentioned in 2.(2)A. above, the reasons for petition for acceptance of final appeals concerning the legality of the Official Orders were excluded by the decision on the acceptance of the final appeals.
(4) Therefore, we can affirm the ruling of the court of prior instance, in its conclusion, that dismissed without prejudice the Actions for Declaratory Judgment against the appellee Tokyo BOE. The part of the judgment in prior instance that dismissed without prejudice the Actions for Declaratory Judgment against the appellee Tokyo Metropolitan Government by finding them to be unlawful goes against the law, containing errors in construction and application of laws and regulations in this point, and the appeal counsels' arguments have the grounds to that extent, but as long as the abovementioned claims for the actions are groundless and should inevitably be dismissed with prejudice on the merits, the final appeals should also be dismissed with prejudice on the merits, with regard to the abovementioned actions, based on the principle of prohibition of change for the worse, and the abovementioned illegality in the judgment in prior instance does not affect the conclusion.

IV. Conclusion
For the reasons stated above, we can affirm the ruling of the court of prior instance, in its conclusion, that dismissed without prejudice the actions to seek injunctions against dismissal out of the Actions for Injunctive Orders against the appellees and also dismissed without prejudice the Actions for Declaratory Judgment against the appellee Tokyo BOE. The illegality in the judgment in prior instance, which dismissed without prejudice the actions to seek injunctions against disciplinary actions other than dismissal out of the Actions for Injunctive Orders against the appellees and also dismissed without prejudice the Actions for Declaratory Judgment against the appellee Tokyo Metropolitan Government, does not affect the conclusion, based on the principle of prohibition of change for the worse, and we can affirm the ruling of the court of prior instance that dismissed the Claims for Damages with prejudice on the merits. Consequently, we determined to dismiss the final appeals with prejudice on the merits. Regarding the Claims for Damages, the reasons for petition for acceptance of final appeals were excluded by the decision on the acceptance of the final appeals.
Therefore, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices, except that there is a dissenting opinion by Justice MIYAKAWA Koji. There are concurring opinions by Justice SAKURAI Ryuko, Justice KANETSUKI Seishi, and Justice YOKOTA Tomoyuki, respectively.

The concurring opinion by Justice SAKURAI Ryuko is as follows.
In this case, the point at issue is whether the actions filed by the appellants are lawful or not under procedural law, and the greater part of the majority opinion deals with that point, while with regard to whether the claims of the appellants are appropriate or not, the majority opinion makes a judgment based on the precedents of this court concerning the constitutionality of the official orders to require standing and singing, and playing an accompaniment on the piano during the singing of the national anthem at graduation ceremonies, etc. and the legality of disciplinary actions taken for those violating the official orders. Therefore, I will explain the gist of those precedents to show how we reached the final judgment of this case.

1. The content of the Circular Notice and the Official Orders, the developments leading to the issuance thereof, how teachers and employees violated the official orders, and how disciplinary actions were taken therefor are all as explained in I.2. of the judgment of this instance. Based on almost the same facts as these, the judgment of the First Petty Bench of the Supreme Court of June 6, 2011, which is cited by the majority opinion of the judgment of this instance, rules as follows, with regard to the constitutionality of the official orders to require standing and singing the national anthem. The act of standing and singing during the singing of the national anthem at a graduation ceremony and other ceremonies which are categorized as ceremonial events of schools, generally and objectively, has a nature of a customary and formal behavior practiced in these ceremonies, and it is also recognized from outside as such behavior. Although the Official Orders cannot be deemed to directly constrain an individual's freedom of thought and conscience, the act of standing and singing during the singing of the national anthem has an aspect as an expression of one's respect of the objects which the appellants negatively evaluate in relation to their views of history or views of the world, and the Official Orders would eventually cause a gap with the behavior deriving from their views of history or views of the world due to the aspect mentioned above. To that extent, the Official Orders could somewhat indirectly constrain the appellants' freedom of thought and conscience. However, although the Official Orders could somewhat indirectly impose a constraint, when comprehensively weighing the purpose and content of the Official Orders as well as the manner in which any constraint is enforced thereby, the Official Orders can be deemed to be necessary and reasonable to such a degree that said constraint caused thereby is permissible. Based on this ruling, said precedent concluded that the official orders to require standing and singing the national anthem are not deemed to be in violation of Article 19 of the Constitution. The same conclusion was also drawn in the judgment of the Third Petty Bench of the Supreme Court of February 27, 2007, which is cited by the majority opinion, with regard to the official order to require playing an accompaniment on the piano. As mentioned in the majority opinion, the Circular Notice does not pose a problem of violating said Article in relation to teachers and employees, based on these precedents.
Furthermore, with regard to the legality of disciplinary actions taken for teachers and employees who did not stand and sing the national anthem and a teacher who did not play an accompaniment on the piano at ceremonies, such as a graduation ceremony and enrollment ceremony, in violation of those official orders, the judgments of the First Petty Bench of the Supreme Court of January 16, 2012, which are cited by the majority opinion of the judgment of this instance, rule as follows. The Official Orders are not in violation of Article 19 of the Constitution, but were issued for the purpose of holding the respective ceremonies in a well-ordered manner as appropriate for an educational event and making them proceed smoothly, while giving due consideration to students, etc., in line with the purports of the provisions of the relevant laws and regulations, etc. specifying the objectives of school education and the significance, ideal, etc. of a graduation ceremony and other ceremonial events, and also in consideration of the nature of the status of local government employees and the public aspect of their duties. From such perspective, it can be said that there is a need to ensure that the Official Orders are to be complied with. Giving an admonition, which is the most minor disciplinary action, for the act of refusing to stand or play an accompaniment in violation of the official orders (hereinafter referred to as the "act of refusing to stand, etc.") does not accompany any direct disadvantages in terms of the duties or salaries of the targeted personnel from a legal standpoint. Even from the perspective of considering the appropriateness of giving an admonition while taking into account various circumstances, including the nature and manners of the act of refusing to stand, etc., it can be judged to be within the bounds of the discretionary power vested in the person authorized to take disciplinary actions. On the other hand, going further to take aggravated disciplinary actions, i.e., giving salary reduction or suspension from duty, can be deemed to be within the bounds of the discretionary power only in the case where the individual and concrete circumstances concerning the relevant person's past record of receiving disciplinary actions, such as the details and the frequency of the violations, sufficiently underpin the necessity to impose such severe disciplinary actions. Based on this ruling, the abovementioned precedents concluded that both the salary reduction, which was imposed on a teacher who had only once received a disciplinary action for his/her act similar to the act of refusing to stand, etc., and the suspension from duty, which was imposed on a teacher who had received disciplinary actions for his/her act of refusing to stand only three times, should be revoked. In my concurring opinions attached to the abovementioned precedents, I pointed out that (i) based on the fact that the Tokyo BOE has taken aggravated disciplinary actions during a short period of time, such as giving salary reduction or suspension from duty, uniformly and automatically for the act of refusing to stand, etc. conducted for the second time onward, such manner of determining aggravated disciplinary actions lacks balance between acts and disadvantages and is not deemed to be appropriate in terms of generally accepted ideas, and that (ii) in light of the fact that official orders may somewhat indirectly constrain the freedom of thought and conscience of individual teachers and employees, such aggravated disciplinary actions are problematic and are not at all deemed to be within the authorized agency's bounds of the discretionary power contemplated by law.

2. In this case, the appellants seek declaration of the nonexistence of the obligations to perform the act of standing and singing the national anthem or playing an accompaniment on the piano, and seek injunctions against the disciplinary actions taken on the ground of their refusal to perform such act. The issue of the types of actions under procedural law will be mentioned in 3. below, but as has been shown above, the majority opinion makes a judgment concerning whether their claims are appropriate or not in line with the precedents of this court.
As explained in 1. above, with regard to the obligations to perform the act of standing and singing the national anthem or playing an accompaniment on the piano, the majority opinion concluded that it cannot be said that teachers and employees are not obliged to follow the Official Orders, as long as the Circular Notice and the Official Orders cannot be deemed to be unconstitutional based on the judgment of the First Petty Bench of the Supreme Court of June 6, 2011, and the judgment of the Third Petty Bench of the Supreme Court of February 27, 2007.
Furthermore, with regard to the injunctions against disciplinary actions, the majority opinion concluded as follows, based on the conclusion of the aforementioned judgments of the First Petty Bench of the Supreme Court of January 16, 2012. The claims to seek injunctions against admonition are groundless because admonition is not deemed to go beyond the bounds of the authorized agency's discretionary power or constitute an abuse of such power. Regarding salary reduction and suspension from duty, however, as explained in 1. above, whether each disciplinary action is within the bounds of the agency's discretionary power or not needs to be judged for each case by taking into consideration the individual circumstances, such as whether each person had conducted any other violations which deserve to be penalized with salary reduction or suspension from duty. However, in this case, as no such individual and concrete circumstances have been identified nor asserted or proved, it is impossible to make a judgment on this point, and the claims should inevitably be dismissed with prejudice on the merits.

3. This case consists of four cases that were originally filed separately and then consolidated. The dates on which those original cases were filed range around the period during which the Administrative Case Litigation Act was revised in 2004 and the revised Act entered into force in April 2005. Partly due to this fact, this case requires careful judgment on appropriate types of actions and the lawfulness of the actions actually filed, sufficiently considering the purport of the Revision Act.
The revision to the Administrative Case Litigation Act in 2004, in a broader sense, affects the future course of Japan in the 21st century, which was conducted as a part of the reform of the Japan's judicial system from the perspective of strengthening the judiciary's function to check the administration and effectively guaranteeing people's rights. Therefore, one of the cores of the revision was the diversification of types of actions eligible to be filed for administrative cases, or more specifically, providing by law a mandamus action and an action for an injunctive order, and clearly stipulating an action for a declaratory judgment on a legal relationship under public law as a public law-related action.
Administrative litigations prior to the revision were mainly actions for revocation, and a mandamus action and an action for an injunctive order were recognized as a non-statutory action for judicial review of administrative disposition. However, after the revision, provisions were separately established for both of them, and the requirements for filing these actions were clearly defined. This is very significant. In particular, as both of these actions have the nature to seek an ex-ante remedy, instead of challenging an administrative disposition ex-post facto, it is highly expected that the judiciary's function to check the administration will be strengthened and remedy for people's rights will be made more effective. Furthermore, the revised Act clearly indicates that public law-related actions include an action for a declaratory judgment on a legal relationship under public law, which is understood as intending to promote the use of this type of action for a declaratory judgment in various types of legal disputes between individuals and the national or local governments in cases where such disputes can be resolved fundamentally through the use thereof. Thus, the revision has also worked to encourage the general public to effectively utilize the system of judicial remedy for various types of administrative activities.
The grounds to conclude that the actions in this case satisfy the requirements for filing an action as an action for an injunctive order and a public law-related action, respectively, and therefore that they are lawful actions have been detailed in the majority opinion of this case, and I will not reiterate them here, but I would like to mention that this court has endeavored to make flexible constructions by fully considering the abovementioned purport of the revision to the Administrative Case Litigation Act and based on the existing theories on procedural law and precedents, and has made a judgment placing emphasis on enhancing the effectiveness of remedy for individuals' rights.

4. In particular, in the context of judging the lawfulness of an action for an injunctive order, it is generally thought to be common and sufficient, as a means to challenge the validity of a disciplinary action, to file an action for revocation of the disciplinary action after it is actually taken, and yet, the majority opinion acknowledged that the circumstances of this case allow seeking an injunction beforehand. This point may need some more explanation.
As the requirements for filing an action for injunctive order, Article 37-4 of the Administrative Case Litigation Act, which was newly established by the Revision Act, stipulates that "an action for an injunctive order may be filed only in cases where any serious damage is likely to be caused," and that when judging whether or not any serious damage would be caused, "the court shall consider the degree of difficulty in recovering from the damage" (paragraphs (1) and (2) of sad Article). The disciplinary actions taken in this case were only to give an admonition to those who have conducted the act of refusing to stand, etc. for the first time, but seemed to have been aggravated from the second time onward on the principle that salary reduction for one month will be imposed upon the second time, salary reduction for six months upon the third time, and suspension from duty upon the fourth time onward. Disciplinary actions against salary reduction and suspension from duty that are thus aggravated uniformly and automatically cause significant disadvantages in terms of the salaries and duties of the targeted personnel. Furthermore, when teachers and employees conduct the act of refusing to stand, etc. in violation of the official orders at school ceremonies that are held at least twice every year, such as graduation ceremonies and enrollment ceremonies, they will be subject to salary reduction twice (for seven months in total) and suspension from duty once within only two years. Disadvantages in terms of their salaries and duties thus aggravated will become too significant to be coped with by way of filing an action for the revocation of an administrative disposition ex-post facto, and we must say that such disadvantages will reach a degree to which recovery therefrom is extremely difficult. Such manner of taking disciplinary actions repeatedly and continuously as well as in a cumulative and aggravating manner against the simple act of refusing to stand, etc. is unprecedented in other local governments and in other cases of violation of official orders and is extremely unusual in that sense. In light of such peculiarities of this case, the majority opinion determined that the requirements for filing an action as an action to seek an ex-ante injunction are satisfied.
Therefore, in the future, at the workplaces relating to this case and in cases similar to this, when it is deemed probable that salary reduction or suspension from duty will be imposed against the act of refusing to stand, etc. conducted for the second time onward, an action to seek an injunction thereagainst may be deemed to be lawful, satisfying the requirements for filing an action. However, with regard to the requirements on the merits in such cases, it is needless to say that those who file an action have to identify, for example, the concrete situations and point in time where an official order was issued and they conducted the act of refusing to stand, etc. in violation of the official order, and allege and prove the individual circumstances for each case, such as how they committed the violation, whether or not they have been subject to any disciplinary actions (have committed any violations) before, the frequency and the details thereof if any.
In this case, disciplinary actions of salary reduction and suspension from duty have already been taken by the Tokyo BOE and are also probable to be taken in the future, but dismissal has never been imposed before and no objective circumstances are observed that suggest the probability that dismissal will be imposed in the future. Therefore, this court ruled that the actions to seek injunctions against dismissal should be dismissed without prejudice because it is not deemed that dismissal is probable to be imposed. In other words, there is a possibility that in cases where dismissal is also probable to be imposed in an aggravating manner on some grounds, an action to seek an injunction thereagainst will be deemed lawful and will be judged to satisfy the requirements on the merits as the dismissal goes beyond the bounds of the authorized agency's discretionary power.

5. As I stated in my concurring opinions attached to the abovementioned judgments of the First Petty Bench of the Supreme Court of January 16, 2012, it is not desirable at all that such violations of official orders and disciplinary actions taken against them have been repeated in the field of education all for nothing. It is expected that both parties, those responsible for educational administration and those in charge of education at schools, will face this problem faithfully and seek flexible and constructive resolution realistically, from the viewpoint of what is necessary and appropriate for children's education and futures.

The concurring opinion by Justice KANETSUKI Seishi is as follows.
My opinion attached here in agreement with the majority opinion ruling that the Official Orders are not in violation of Article 19 of the Constitution is as stated as my opinion attached to the judgment of the First Petty Bench of the Supreme Court of June 6, 2011, that is cited by the majority opinion.

The concurring opinion by Justice YOKOTA Tomoyuki is as follows.
Based on the rulings made so far by this Petty Bench regarding a series of cases on the national flag and the national anthem, I would like to present my opinion here.
I am in agreement with the majority opinion ruling as follows. The actions to seek injunctions against disciplinary actions other than dismissal (suspension from duty, salary reduction, or admonition) out of the Actions for Injunctive Orders are lawful and the Actions for Declaratory Judgment against the appellee Tokyo Metropolitan Government are also lawful as public law-related actions under public law, but the Official Orders issued by the principals of the Tokyo Metropolitan Schools to the teachers and employees of their schools are not in violation of Article 19 of the Constitution, nor does the Circular Notice pose a problem of violating said Article in relation to those teachers and employees, and therefore it cannot be said that the appellants do not have the obligations in public service based on the Official Orders. Then, the abovementioned claims for declaration are groundless and it is not possible either to say that the abovementioned claims to seek injunctions satisfy the requirements on the merits. The Courses of Study, including those for High Schools, etc. consider that "ceremonial events," which are included in "school events" within the category of "special activities," constitute the curricula together with another category of activities, "coursework." Out of such ceremonial events, enrollment ceremonies and graduation ceremonies, in particular, mark breakpoints in school curricula and also have significance for each of the students as a turning point in his/her life, and therefore should be held smoothly in a well-ordered manner so that they are fully impressive. Furthermore, as how such ceremonies are ordinarily held and what attendants do or how they should act and behave on such occasions are some of the etiquettes or common sense that students need to acquire before becoming members of society in their adulthood, it should be part of the significant duties of teachers to instruct students by setting a good example by themselves. It is not appropriate to neglect such duties just because these ceremonies do not fall under the category of coursework. It can be construed that the Official Orders are issued based on the idea that ceremonies as school events are thus within the scope of educational activities, and for this reason, it cannot be helped that a teacher or employee, who has behaved in violation of the Official Orders, is subject to a certain disciplinary action.
However, considering that (i) the act of refusing to stand or play an accompaniment on the piano during the singing of the national anthem derives from a view of history or view of the world of the relevant individuals, that (ii) such act only lasts for a relatively short time, and that (iii) for those who have violated each of the official orders to require standing, etc. issued upon ceremonial events that are held at least twice every fiscal year, such as enrollment ceremonies, disciplinary actions are accumulated and aggravated in a short period of time, and there are risks that the violations they commit and the disciplinary actions taken against them become unbalanced, those vested with the power to take disciplinary actions are required to restrain themselves and be careful when exercising such power. On this point, I am in agreement with the concurring opinions by Justice SAKURAI attached to the precedents (2011 (Gyo-Tsu) No. 263 and 2011 (Gyo-Hi) No. 294, judgment of the First Petty Bench of the Supreme Court of January 16, 2012; 2011 (Gyo-Tsu) No. 242 and 2011 (Gyo-Hi) No. 265, judgment of the First Petty Bench of the Supreme Court of January 16, 2012).
The criteria for judicial review concerning the legality of disciplinary actions have already been shown in the precedents, including 1972 (Gyo-Tsu) No. 52, judgment of the Third Petty Bench of the Supreme Court of December 20, 1977, Minshu Vol. 31, No. 7, at 1101, which is cited by the abovementioned judgments of the First Petty Bench of the Supreme Court of January 16, 2012. Basically, review should be made by integrally taking into consideration various circumstances in respective cases. However, in light of the abovementioned nature of cases of this type, with regard to violations such as refusing to stand during the singing of the national anthem, if a person who has been given admonitions several times does not stop repeating the same type of violations, salary reduction may be admitted as an unavoidable action to be taken against him/her, while as long as the person chooses inaction just by refusing to stand or play an accompaniment on the piano without taking any actions to hinder the smooth progress of the ceremonies or otherwise impede the order of the ceremonies or their educational purposes, it is appropriate to penalize him/her with disciplinary actions up to salary reduction, in principle. Even only with salary reduction, if disciplinary actions are imposed repeatedly, this will cause considerable disadvantages not only economically but also in terms of treatment at the workplace, which is considered to be basically sufficient as dispositions aggravated on the ground of having repeated violations of the same type. As mentioned in the majority opinion of the abovementioned judgment of the First Petty Bench of the Supreme Court of January 16, 2012 (2011 (Gyo-Tsu) No. 263 and 2011 (Gyo-Hi) No.294), as the issue of appropriateness of disciplinary actions taken within the authorized agency's bounds of discretionary power, it would be preferable to consider limiting disciplinary actions to admonition or guidance with regard to the first violation of the Official Orders.
Based on this standpoint, disciplinary actions taken by the Tokyo BOE against those who have violated the Official Orders since the issuance of the Circular Notice, namely the determination of disciplinary actions, mostly giving an admonition against the first violations, imposing salary reduction upon the second and third time, and imposing suspension from duty upon the fourth time onward, seems to be problematic in general terms, although dismissal has never been imposed so far.
It seems to me that we cannot overlook violations that hinder the smooth progress of school ceremonies, which are to be held solemnly in a well-ordered manner, and impede the educational purposes of these ceremonial events, but imposing severe disciplinary actions on violators will not solve the problem fundamentally in light of the nature of the case. We should say that the situation where violations of official orders concerning the national flag and the national anthem and disciplinary actions taken against them have been repeated fruitlessly is not appropriate in the field of education. All the related parties should seriously consider the harmful effects that such situation has on susceptible young students and socially-accepted ideas on this issue, and should make utmost effort to seek concrete means to reach an appropriate solution. It is the responsibility of all of the related parties to put an end to this fruitless fight.

The dissenting opinion by Justice MIYAKAWA Koji is as follows.
1. I cannot agree with the majority opinion concerning the reasons for final appeal asserting the violation of Article 19 of the Constitution. Regarding Part II, Chapter 1 of the reasons for final appeals, I am in agreement with the majority opinion and think that the judgment in prior instance ruling that the Circular Notice falls under the category of administrative dispositions is not appropriate, and that out of the Actions for Injunctive Orders against the appellees, the actions to seek injunctions against disciplinary actions other than dismissal are lawful as actions for injunctive orders, which fall under a type of actions for judicial review of administrative disposition, and the Actions for Declaratory Judgment against the appellee Tokyo Metropolitan Government are also lawful as actions for declaratory judgment concerning a legal relationship under public law, which fall under a type of public law-related actions under public law. However, I cannot agree with the majority opinion ruling that claims for all of these actions are groundless. I have already expressed my opinion on the violation of Article 19 of the Constitution in my dissenting opinions attached to the judgment of the First Petty Bench of the Supreme Court of June 6, 2011, and the judgments of the First Petty Bench of the Supreme Court of January 16, 2012, that are cited by the majority opinion. I will summarize the content of my opinion to the extent necessary for making a judgment in this case in 2. below, and will present some supplementary comments on the lawfulness of the abovementioned actions in 3. and my dissenting opinion on the appropriateness or inappropriateness of said claims in 4. Furthermore, in 5., I will add my view on a series of disputes concerning disciplinary actions taken on the ground of the act of refusing to stand, etc.

2. Based on the facts legally determined by the court of prior instance, the appellants' personal views of history, views of the world, and educational beliefs relating to the role that "Hinomaru" and "Kimigayo" played in Japan in the past can be deemed to be sincere. And if they are sincere, the act of standing facing "Hinomaru" and singing "Kimigayo," which the Official Orders require the appellants to perform, is a kind of behavior that goes beyond the boundary that the appellants need to defend, and it could cause disturbance to the core of their thoughts and conscience. Furthermore, as educators who have carried on the practice of education thus far with emphasis on the respect of human rights and the importance of independent thinking, the appellants may have thought that performing said act would mean to deny their educational beliefs, or in other words, their souls. Therefore, their noncompliance with the Official Orders and refusal to stand and sing can be deemed to be an expression of the core of their thoughts and conscience, or at least, to be closely relevant with such core.
Apart from general administration, public educational personnel have the responsibility to devote their specialty in the educational field to achieve the objectives of education (Article 2 of the Basic Act on Education), and at the same time, they are guaranteed with freedom of education. Considering the objectives of education, freedom of mind of teachers should be respected in particular. Then, when teachers educate students on the national flag and the national anthem in coursework, they must perform their duties properly under their professional discretion as teachers, but in scenes apart from occasions where they directly educate students (school ceremonies, which fall under the category of special activities, can be one of such scenes), they should not be required to perform an act that goes against the core of their thoughts and conscience.
The Act on National Flag and National Anthem and the Courses of Study cannot serve as the basis for forcing teachers and employees to perform the act of standing and singing, etc. by means of an official order. One can see that the Circular Notice, on which the Official Orders are based, was not issued with a value-neutral intention of making ceremonies proceed smoothly, but it was issued on the assumption that some teachers and employees might have the abovementioned views of history, etc., and based on the negative evaluation of such views of history, etc., it attempted to force subject persons to act contrary to those views of history, etc. by means of an adverse disposition.
Therefore, the appellants' noncompliance with the Official Orders and refusal to stand and sing should be protected under the Constitution as the act relating to their freedom of mind. The same shall apply with regard to the act of refusing to play an accompaniment on the piano. Accordingly, the Official Orders are to be subject to constitutional review according to what is called strict criterion in relation to the appellants. As a result, there is a possibility that the Official Orders are in violation of Article 19 of the Constitution in relation to the appellants, and the possibility is deemed to be high.

3. The Official Orders are orders issued within the administrative organization and cannot be deemed to be administrative dispositions that directly or concretely cause any legal influences to people's rights and obligations or their legal status. When a school principal has individually performed an act of issuing an official order based on the Circular Notice and an official order has been issued, the Tokyo BOE takes disciplinary actions against teachers and employees who have violated the official order. All of the steps in this process involve certain discretion, and disciplinary actions taken ultimately should be regarded as an administrative disposition which may be subject to an action for the revocation of an administrative disposition and stay of execution. If we affirm, as affirmed by the judgment in prior instance, that the Circular Notice has the nature of an administrative disposition on the ground that it generates legal effects in that "teachers and employees are to receive disciplinary actions with some conditions," this may result in expanding the scope covered by actions for the revocation of administrative dispositions to include circular notices and prefectural or municipal ordinances concerning dispositions of administrative agencies. This is not appropriate. The ruling of the court of prior instance also goes against the purport of the Revision Act, which defines actions for injunctive orders as statutory actions for judicial review of administrative disposition, and encourages the utilization of actions for declaratory judgment with the aim of strengthening the judiciary's function to check the administration and effectively guaranteeing people's rights and freedom.
The appellants seek declaratory judgment that they are not obliged, based on the Official Orders, to stand facing the national flag at the designated places and sing the national anthem or to play an accompaniment on the piano during the singing of the national anthem at ceremonies, such as a graduation ceremony and enrollment ceremony (the Actions for Declaratory Judgment), and seek injunctions against the disciplinary actions to be taken on the ground of their violation of the Official Orders (the Actions for Injunctive Orders). The latter can be deemed to be actions for injunctive orders, which are statutory actions for judicial review of administrative disposition. Too much emphasis should not be placed on the probability that the disposition is to be made, which is one of the requirements for filing said type of actions (Article 3, paragraph (7) of the Administrative Case Litigation Act). However, according to the findings made by the court of prior instance that dismissal has never been imposed in Tokyo, it cannot be said to be probable that dismissal will be imposed in the future. With regard to other types of disciplinary actions, the requirement concerning the probability is satisfied. Actions for injunctive orders were provided by law as there are cases where damages cannot be remedied sufficiently by means of filing an action for revocation of administrative disposition and stay of execution to be ordered as a result of the action, and damages that cannot be remedied through such means must exist. Such requirement of supplementary means (the proviso to Article 37-4, paragraph (1) of said Act) is usually satisfied when "any serious damage is likely to be caused" (the main clause of said paragraph). As pointed out in the majority opinion, the disciplinary actions in question are unprecedented and peculiar in that they have been taken repeatedly and continuously as well as in a cumulative and aggravating manner, and considering the nature and extent of the damage as well as the content and nature of the original administrative disposition (Article 37-4, paragraph (2) of said Act), both the requirement concerning the significance of damages and the requirement of supplementary means can be deemed to be satisfied.
As long as actions for injunctive orders, which are statutory actions for judicial review of administrative disposition, may be thus filed lawfully, the Actions for Declaratory Judgment filed as non-statutory actions for judicial review of administrative disposition fail to satisfy the requirement of supplementary means and are therefore unlawful because they fulfill the same function as that of actions for injunctive orders, in substance, as actions for preventing disciplinary actions. Nevertheless, the appellants allege that with regard to the cases wherein the Tokyo Metropolitan Government stands as a defendant, if the actions are lawful as so-called substantial public law-related actions (actions relating to a legal relationship under public law; the latter part of Article 4 of the Administrative Case Litigation Act), judgment should be made by selecting this type of actions. In light of the purport of the revision to the Administrative Case Litigation Act to encourage the utilization of actions for declaratory judgment, it seems proper to take a flexible stance on the interest to seek declaration in substantial public law-related actions. As pointed out in the majority opinion, actions for injunctive orders may prevent disadvantageous treatment in the form of disciplinary actions in advance, but may not necessarily prevent disadvantages in raise in salary due to unfavorable evaluation of their work performance, and other forms of disadvantageous treatment, such as disadvantages in promotion, may also be given. Furthermore, disadvantages in reemployment after mandatory retirement are anticipated, and the targeted personnel are worried about and in danger of receiving such disadvantages. (Even if disciplinary actions to be taken on the ground of violation of the Official Orders can be suspended, the Official Orders themselves do exist, and any fact of violating them will be reported to the Tokyo Metropolitan Government through supervision of behavior concerning compliance with them. The appellants will be inevitably left in a state of psychological instability.) Then, if we consider that there exist certain concerns on the appellants' rights or legal status and they filed the actions for the purpose of eliminating such concerns comprehensively, their actions can be recognized as "actions relating to a legal relationship under public law." In this case, disciplinary actions have unprecedented peculiarities in that they have been taken repeatedly and continuously and disadvantageous treatment is to be given for sure. Therefore, it can be concluded that "there are special circumstances, such as that there are risks of receiving any serious damage that can hardly be recovered (ex-post facto), and where it is deemed extremely improper not to admit an ex-ante remedy" (1966 (Gyo-Tsu) No. 35, judgment of the First Petty Bench of the Supreme Court of November 30, 1972, Minshu Vol. 26, No. 9, at 1746; 1988 (Gyo-Tsu) No. 92, judgment of the Third Petty Bench of the Supreme Court of July 4, 1989, Saibanshu Minji No. 157, at 361). The Actions for Declaratory Judgment are deemed to be "effective and appropriate means" for resolving the disputes in this case (2001 (Gyo-Tsu) No. 82 and No. 83, and 2001 (Gyo-Hi) No. 76 and No. 77, judgments of the Grand Bench of the Supreme Court of September 14, 2005, Minshu Vol. 59, No. 7, at 2087).

4. The majority opinion admits the lawfulness of the claims to seek injunctions against disciplinary actions other than dismissal and of the Actions for Declaratory Judgment as public law-related actions under public law, but concludes that all claims are groundless, stating that the Official Orders are not unconstitutional and void and therefore it cannot be said that the obligations in public service based thereon do not exist.
However, as explained in 2. above, the Official Orders are to be subject to constitutional review according to what is called strict criterion in relation to the appellants, and as a result, there is a possibility that the Official Orders are in violation of Article 19 of the Constitution in relation to the appellants and that possibility is deemed to be high. Then, it should be concluded that there exist no obligations in public service to stand and sing the national anthem or play an accompaniment on the piano based on the Official Orders. Consequently, it can be said that the claims to seek injunctions in this case satisfy the requirements on the merits (the former part of Article 37-4, paragraph (5) of the Administrative Case Litigation Act). The disciplinary actions taken on the ground of violation of the Official Orders (admonition, salary reduction, or suspension from duty) are all unlawful as they obviously went beyond the bounds of the discretionary power vested in the person authorized to take disciplinary actions or constituted an abuse of such power, as I stated in my dissenting opinion attached to the judgments of the First Petty Bench of the Supreme Court of January 16, 2012, that are cited by the majority opinion. Then, even reserving constitutional judgment, the claims to seek injunctions in this case satisfy the requirement on the merits (the latter part of said paragraph). In conclusion, the claims to seek injunctions in this case can be upheld to the extent to seek injunctions against disciplinary actions other than dismissal to be taken on the ground of violation of the Official Orders.
Also with regard to the Actions for Declaratory Judgment as public law-related actions under public law, since there is a high possibility that the Official Orders are found to be unconstitutional and void, it should be concluded that there exist no obligations in public service to stand and sing the national anthem or play an accompaniment on the piano based on the Official Orders, and the claims to seek declaration of the nonexistence thereof can be upheld.

5. Out of cases generally called "Kimigayo Cases," those concerning the act of simply refusing to stand, etc. without accompanying aggressive obstructive behavior, for which the First Petty Bench of the Supreme Court has rendered judgments, totaled eight cases (four cases each last year and this year). Two of these were cases in Kitakyushu City, and the other six were cases in Tokyo. Out of cases of the same type, for which the Supreme Court has rendered judgments, the one ruled by the Second Petty Bench last year was a case in Tokyo, and out of four such cases ruled by the Third Petty Bench (one of these was the case concerning the act of playing an accompaniment on the piano in 2007, and the other three were ruled last year), one was a case in Hiroshima City but the other three were cases in Tokyo. Looking at the distribution of the pending cases in lower instance courts, it seems that disciplinary actions have been taken against the act of refusing to stand, etc. only in Tokyo and a small number of other municipalities nationwide. I find rays of hope in this fact that freedom of mind of teachers has still been respected in the field of education, which should be ensured as a matter of course in a liberal, democratic society. This will lead to fostering children's free minds, benevolence, and diversified creativity. However, it is really regrettable that disputes as in this case have been repeated even in some limited areas. As history has illustrated, sticking to one's ideas and rejecting others will bring about miserable results. Singing a national anthem does not simply result in loving one's country and respecting other countries. Generally, a national anthem is deeply related to the past history of each nation and is evaluated in various manners by people of other nations. In addition, it is not so common worldwide that attendants sing a national anthem at ceremonies, such as an enrollment ceremony and graduation ceremony. The spirit to respect diversified thoughts is the very basis of a democratic nation and can contribute to building a better international community. Fortunately, aggressive behavior to hinder the smooth progress of the ceremonies has rarely been seen in recent years. Such behavior cannot be overlooked, but as long as the act of refusing to stand, etc., which is performed based on an individual's sincere views of history, etc., does not particularly hinder the smooth progress of a ceremony, a certain tolerance will be required to accept such act as belonging to the minority's freedom of thought. I hope that all of the related parties give careful consideration on this point.

Justice MIYAKAWA Koji
Justice SAKURAI Ryuko
Justice KANETSUKI Seishi
Justice YOKOTA Tomoyuki
Justice SHIRAKI Yu