2015.09.08

2014 (Gyo-Hi) 406

Minshu Vol. 69, No. 6

Judgment concerning the applicability of Article 18, paragraph (1) of the Atomic Bomb Survivors' Assistance Act to overseas atomic bomb survivors who received medical care outside Japan

Case to seek revocation of administrative dispositions to dismiss applications for payment of medical expenses for general diseases, etc.

Judgment of the Third Petty Bench, dismissed

Osaka High Court, Judgment of June 20, 2014

Article 18, paragraph (1) of the Atomic Bomb Survivors' Assistance Act, which provides for the payment of medical expenses for general diseases, is also applicable to overseas atomic bomb survivors (atomic bomb survivors prescribed in Article 1 of said Act who do not have a place of residence or current residence in Japan) who received medical care outside Japan.

Article 1 and Article 18, paragraph (1) of the Atomic Bomb Survivors' Assistance Act



Atomic Bomb Survivors' Assistance Act

(Atomic Bomb Survivors)

Article 1

The term "atomic bomb survivor" as used in this Act means a person who falls under any of the following items and who has obtained an atomic bomb survivor's certificate:

(i) a person who, at the time the atomic bombs were dropped, was present in any location within the area of Hiroshima City or area of Nagasaki City of that time, or within the areas adjacent thereto specified by Cabinet Order,;

(ii) a person who, for the period specified by Cabinet Order running from the time the atomic bombs were dropped, was present in any of the areas specified by Cabinet Order among the areas provided in the preceding item;

(iii) in addition to those set forth in the preceding two items, a person who, at the time the atomic bombs were dropped or thereafter, was under circumstances in which his/her body was affected by the radiation from said atomic bombs; and

(iv) a person who was an embryo or fetus of a person set forth in any of the preceding three items at the time when the latter person fell within any of the categories provided in these items.

(Payment of Medical Expenses for General Diseases)

Article 18

(1) When an atomic bomb survivor, for his/her injury or disease (excluding an injury or disease for which an atomic bomb survivor may receive the medical care provided as prescribed in Article 10, paragraph (1): a hereditary disease, a congenital disease, and any other injury or disease specified by the Minister of Health, Labour and Welfare), has received the medical care set forth in the items of Article 10, paragraph (2) from a medical institution designated by a prefectural governor pursuant to the provisions of paragraph (1) of the following Article (hereinafter referred to as a "medical institution for atomic bomb survivors' general diseases"), or has received any such medical care from a person other than a medical institution for atomic bomb survivors' general diseases due to an emergency or any other compelling reason, the Minister of Health, Labour and Welfare may pay to him/her medical expenses for general diseases, up to the amount of expenses that the atomic bomb survivors incurred for the relevant medical care; provided, however, that if the atomic bomb survivor, for his/her injury or disease, receives or could have received benefits for medical care pursuant to the provisions of the Health Insurance Act (Act No. 70 of 1922), the Mariners Insurance Act (Act No. 73 of 1939), the National Health Insurance Act, the National Public Officers Mutual Aid Association Act (Act No. 128 of 1958; including the cases where this Act is applied mutatis mutandis or this Act governs pursuant to other laws) or the Local Public Officers, etc. Mutual Aid Association Act (Act No. 152 of 1962) (hereinafter these Acts are referred to as the "social insurance laws" in this Article), the Act on Assurance of Medical Care for Elderly People (Act No. 80 of 1982), the Long-Term Care Insurance Act (Act No. 123 of 1997), the Labor Standards Act (Act No. 49 of 1947), the Industrial Accident Compensation Insurance Act (Act No. 50 of 1947), the Mariners Act (Act No. 100 of 1947) or the Act on the National Agency for the Advancement of Sports and Health, Independent Administrative Agency (Act No. 162 of 2002), or such medical care is provided in the form of benefits for medical care at the expense of the State or a local public entity pursuant to the provisions of laws and regulations, medical expenses for general diseases are paid up to the amount calculated by deducting the amount of the benefits for the relevant medical care from the amount of expenses that the atomic bomb survivors incurred for the relevant medical care (if the atomic bomb survivor receives or could have received benefits for medical treatment under the social insurance laws or the Act on Assurance of Medical Care for Elderly People, up to the amount equivalent to the co-payment in relation to the benefits for the relevant medical treatment under the provisions of the respective social insurance laws or the Act on Assurance of Medical Care for Elderly People; if the relevant medical care is provided in the form of benefits in kind of medical care at the expense of the State or a local public entity pursuant to the provisions of laws and regulations, up to the amount of actual expenses that the State of the local public entity collected for the benefits for the relevant medical care).

The final appeal is dismissed.

The appellant of final appeal shall bear the cost of the final appeal.

Concerning the reasons for final appeal argued by the representatives designated for final appeal

1. With regard to the three atomic bomb survivors who were exposed to radiation from the atomic bomb dropped in Hiroshima and who received atomic bomb survivor's certificates under the Atomic Bomb Survivors' Assistance Act, applications for payment of medical expenses for general diseases prescribed in Article 18, paragraph (1) of said Act were filed in relation to the medical care that they had received in the Republic of Korea, their country of residence. However, the Governor of Osaka Prefecture made dispositions to dismiss the applications on the grounds that the provisions of said paragraph are not applicable to overseas atomic bomb survivors (meaning atomic bomb survivors prescribed in Article 1 of said Act who do not have a place of residence or current residence in Japan; the same applies hereinafter) (these dispositions are hereinafter referred to as the "Dispositions to Dismiss the Applications"). Accordingly, the appellees of final appeal (an atomic bomb survivor and the heirs of the other atomic bomb survivors), filed this action against the appellant to seek revocation of the Dispositions to Dismiss the Applications, etc.

2. (1) The Atomic Bomb Survivors' Assistance Act provides for assistance to atomic bomb survivors for the purpose of giving relief to them, while taking into account the extraordinary and serious nature of heath damage caused by radiation from an atomic bomb and focusing on uncommon health conditions faced by atomic bomb survivors (see the Preface of said Act, and 1975 (Gyo-Tsu) No. 98, judgment of the First Petty Bench of the Supreme Court of March 30, 1978, Minshu Vol. 32, No. 2, at 435), and it does not distinguish atomic bomb survivors depending on whether or not they have a place of residence or current residence in Japan, but includes all of them in the scope of persons eligible for assistance. Accordingly, those who do not have a place of residence or current residence in Japan would be recognized as atomic bomb survivors as long as they fall within any of the categories provided in the items of Article 1 of said Act and obtain an atomic bomb survivor's certificate. Article 18, paragraph (1) of said Act, which provides for the payment of medical expenses for general diseases, only stipulates that atomic bomb survivors are eligible to receive payment, and does not require atomic bomb survivors to have a place of residence or current residence in Japan or to have received medical care in Japan, as a condition for receiving payment. Furthermore, said paragraph provides for the payment of medical expenses for general diseases to an atomic bomb survivor who received medical care from a person other than a medical institution designated by a prefectural governor pursuant to the provisions of Article 19, paragraph (1) of said Act (hereinafter referred to as a "medical institution for general diseases"). In this respect, there is no provision that limits such person other than a medical institution for general diseases as prescribed in Article 18, paragraph (1) of said Act to a person who practices medicine in Japan. It is considered that overseas atomic bomb survivors would normally face considerable difficulty in traveling to Japan to receive medical care. If overseas atomic bomb survivors were unable to receive any payment of medical expenses for general diseases when they received medical care outside Japan, it must be said that such situation would be contrary to the spirit of said Act, which provides for assistance to atomic bomb survivors for the purpose of giving relief to them while focusing on their uncommon health conditions.

(2) The representatives designated for final appeal argue as follows. The Atomic Bomb Survivors' Assistance Act provides for the payment of medical expenses for general diseases, on the premise of various regulations for securing safety in medical care, such as those under the Medical Care Act. In order to ensure proper payment of medical expenses for general diseases, the Atomic Bomb Survivors' Assistance Act provides that a person other than a medical institution for general diseases may be subject to orders issued by the Minister of Health, Labour and Welfare to make reports on medical care and submit medical records (Article 21 and Article 17, paragraph (3) of the Atomic Bomb Survivors' Assistance Act). These regulations are not applicable to a person who practices medicine outside Japan, and hence such person other than a medical institution for general diseases as prescribed in Article 18, paragraph (1) of said Act should be considered to be also limited to a person who practices medicine in Japan. However, in light of the provisions of said paragraph as explained in (1) above and the spirit of said Act, if one takes this interpretation even in the absence of a provision that excludes overseas atomic bomb survivors who received medical care outside Japan from the scope of application of the provisions of said paragraph, only because of the fact that the abovementioned regulations are not applicable to a person who practices medicine outside Japan, such attitude should be held to be contrary to the spirit of said Act and should therefore be judged to be inappropriate. The arguments of the representatives designated for final appeal cannot be accepted.

Article 18, paragraph (1) of the Atomic Bomb Survivors' Assistance Act provides that medical expenses for general diseases are, in principle, paid to atomic bomb survivors who received medical care from medical institutions for general diseases, and that those who received medical care from persons other than medical institutions for general diseases are eligible to receive such payment on condition that they received medical care from such other persons due to an emergency or any other compelling reason. When there is no medical institution for general diseases in the vicinity of an atomic bomb survivor's place of residence or current residence and therefore the atomic bomb survivor needs to receive medical care from a person other than a medical institution for general diseases that is available nearby, such atomic bomb survivor is considered to meet the abovementioned condition. The same interpretation should also be held to be valid when overseas atomic bomb survivors received medical care outside Japan.

(3) According to the above, it is appropriate to construe that the provisions of Article 18, paragraph (1) of the Atomic Bomb Survivors' Assistance Act are also applicable to overseas atomic bomb survivors who received medical care outside Japan. Consequently, the Dispositions to Dismiss the Applications are illegal, because they were made on the grounds that the provisions of said paragraph are not applicable at all in this case, without determining whether or not overseas atomic bomb survivors who received medical care outside Japan meet the condition prescribed in said paragraph.

3. For the reasons stated above, the determination of the court of prior instance that upheld the appellees' claims to seek revocation of the Dispositions to Dismiss the Application due to the illegality of these dispositions can be affirmed. The arguments of the representatives designated for final appeal cannot be accepted.

Therefore, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices.

Justice OKABE Kiyoko

Justice OTANI Takehiko

Justice OHASHI Masaharu

Justice KIUCHI Michiyoshi

Justice YAMASAKI Toshimitsu