2020.07.14

2019 (Gyo-Hi) 40

Minshu Vol. 74, No. 4

Judgment concerning the case in which multiple public officers have an obligation to pay reimbursement to the State or a public entity under Article 1, paragraph (2) of the State Redress Act jointly and severally

Case seeking a declaratory judgment on the illegality of the failure to exercise the right to seek reimbursement, etc., and intervention as a coparty

Judgment of the Third Petty Bench, partially quashed and decided by the Supreme Court, partially dismissed with prejudice on the merits, and partially dismissed without prejudice

Fukuoka High Court, Judgment of September 28, 2018

Where multiple public officers who exercise the public authority of the State or of a public entity, jointly in the course of their duties, unlawfully inflicted damage on another person intentionally, and the State or the public entity has compensated for the damage, these public officers have an obligation to pay reimbursement to the State or the public entity under Article 1, paragraph (2) of the State Redress Act jointly and severally.

(There is a concurring opinion.)

Article 1, paragraph (2) of the State Redress Act



State Redress Act

Article 1, paragraph (2)

(2) In the case referred to in the preceding paragraph, when there was intent or gross negligence on the part of the public officer, the State or public entity shall have the right to obtain reimbursement from that public officer.

1. The part of the judgment in prior instance concerning the claim to demand the appellee of final appeal to make a claim for payment of money based on the right to seek reimbursement from P is modified as follows.

(1) Based on the appeals filed to the court of second instance by the appellants of final appeal, paragraphs 6 and 7 of the main text of the judgment in first instance are modified as follows.

The appellee of final appeal shall make a claim against P for payment of 26,824,743 yen and the amount of money accrued thereon at the rate of 5% per annum for the period from April 17, 2013, until the date of completion of the payment.

The other claims of the appellants of final appeal are dismissed.

(2) The appeal filed to the court of second instance by the appellee is dismissed.

2. The final appeal filed by the appellants concerning the claim to demand the appellee to make a claim for payment of money based on the right to seek reimbursement from Q, R, and S is dismissed without prejudice.

3. The other parts of the final appeals filed by Appellant X1 and Appellant X2 are dismissed with prejudice on the merits.

4. The total court costs are divided into nine, of which eight parts shall be borne by the appellants, and the rest shall be borne by the appellee.

Concerning Reason II for a petition for acceptance of final appeal stated by the counsel for final appeal, SETO Hisao, et al.

1. The employees of the Oita Prefectural Board of Education (hereinafter referred to as the "Prefectural Board of Education") engaged in misconduct such as manipulating the scores of some examinees (hereinafter referred to as the "Misconduct") in a teacher recruitment examination, and Oita Prefecture (hereinafter the "Prefecture") paid compensation for damage to the examinees who were rejected in this examination due to the Misconduct. This case is a residents' action filed by the appellants, who are residents of the Prefecture under Article 242-2, paragraph (1), item (iv) of the Local Autonomy Act, to demand the appellee to make a claim for payment of money based on the right to seek reimbursement from P and others who were involved in the Misconduct.

2. The outline of the facts lawfully determined by the court of prior instance is as follows.

(1) The Prefectural Board of Education conducts teacher recruitment examinations for public schools in Oita Prefecture. When the examination for the recruitment for FY2007 (hereinafter referred to as the "Examination for FY2007") was conducted, the administrative work for the teacher recruitment examinations regarding teachers of elementary schools and junior high schools and school nurses was managed by the personnel affairs section of the compulsory education division of the Prefectural Board of Education, and the decision to pass or reject examinees was made by the superintendent. The Prefectural Board of Education had a deputy superintendent in charge of assisting the superintendent and presiding over the compulsory education department.

(2) P, who was the deputy superintendent at the time of the Examination for FY2007, received a considerable number of requests to pass certain examinees in the Examination for FY2007, and instructed T, who was the chief of the personnel affairs section at that time, to pass the examinees selected by P from among those associated with these requests. In one of these cases, P had received one million yen as a bribe from Q, who was the assistant principal of a municipal elementary school in the Prefecture, and Q's wife, R, who was a teacher of a municipal elementary school in the Prefecture (hereinafter collectively referred to as "Mr. and Mrs. Q"), and received their request to treat their child favorably and pass him or her in the Examination for FY2007.

U, who was the chief of the compulsory education division at that time, also received a considerable number of the same type of requests in addition to the request mentioned above, and instructed T to pass the examinees selected by U from among those associated with these requests.

Having received the instructions mentioned above, T first manipulated the scores of the examinees and then had the superintendent make the decision to pass or reject examinees, and thereby eventually caused the examinees associated with the abovementioned instructions (including the child of Mr. and Mrs. Q) to pass the examination.

P knew of the improper requests made to the chief of the compulsory education division, etc., but did not correct the misconduct of U and T.

(3) In December 2010, based on the settlement clause, the Prefecture paid a total of 70,950,000 yen as compensation for damage to the 31 examinees who should have been passed but had been rejected in the Examination for FY2007 due to the Misconduct.

The Misconduct also took place in the teacher recruitment examination for public schools in Oita Prefecture for FY2008. In March 2011, based on the settlement clause, the Prefecture paid a total of 19,500,000 yen as compensation for damage to the 22 examinees who should have been passed but had been rejected in that examination due to the Misconduct.

(4) With regard to the amounts paid as compensation for damage mentioned in (3) above, the Prefecture received donations of 48,424,616 yen in total from people including the executives of the Prefectural Board of Education and 5,000,000 yen from some members of the Prefectural Board of Education by February 2012, respectively.

As the performance of the obligations to pay reimbursement of the amounts paid as compensation for damage mentioned in (3) above, the Prefecture received 444,687 yen from Mr. and Mrs. Q and 1,953,633 yen from P by February 2012, respectively.

3. Based on the facts mentioned above, the court of prior instance found that P, jointly with U and T, engaged in the Misconduct intentionally in the course of his duties, and determined that the total amount of the right of the Prefecture to seek reimbursement from P, U, and T was 28,778,376 yen as calculated by deducting the total of 41,921,624 yen, which is part of the donations offered to the Prefecture and should be appropriated to the compensation related to the Examination for FY2007, and 250,000 yen, which is part of the amount paid by Mr. and Mrs. Q and should be borne by them as their obligation to pay reimbursement, from 70,950,000 yen paid by the Prefecture as compensation for damage for the Examination for FY2007. The court of prior instance further determined as summarized below and dismissed the part of the appellants' claim to demand the Prefecture to make a claim for payment against P, which exceeds 9,557,717 yen.

Given that the responsibility provided under Article 1, paragraph (1) of the State Redress Act has a nature of respondeat superior, the right to seek reimbursement under paragraph (2) of that Article substantially has a nature of a claim for unjust enrichment, and the obligation to pay reimbursement would be a divisible obligation if there is more than one party from whom reimbursement can be sought. Therefore, it is reasonable to consider that P, U, and T bear a divisible obligation to pay reimbursement to the Prefecture. In light of the job responsibilities of these three persons at the time of the Misconduct and how they were involved in the Misconduct, the Prefecture acquires the right to seek reimbursement from P, U, and T at the ratio of 4:3.5:2.5, and accordingly, the amount that the Prefecture should seek from P is 9,557,717 yen as calculated by deducting the amount paid by P from 11,511,350 yen, which is equivalent to 40% of the total amount of the right of the Prefecture to seek reimbursement from these three persons, 28,778,376 yen.

4. However, the determination of the court of prior instance mentioned above cannot be upheld, for the following reasons.

(1) When multiple public officers who exercise the public authority of the State or of a public entity, jointly in the course of their duties, unlawfully inflicted damage on another person intentionally, and the State or the public entity has compensated for the damage, these public officers should be considered to have an obligation to pay reimbursement to the State or the public entity under Article 1, paragraph (2) of the State Redress Act jointly and severally. This is because the public officers in such case should be deemed to form one unit in terms of their relationship with the State or the public entity, and even if any of these public officers is unable to pay due to lack of funds or for other reasons, it is considered to be reasonable from the perspective of equity to have all of these public officers bear such risk in terms of their relationship with the State or the public entity.

(2) In the present case, P, jointly with U and T, engaged in the Misconduct intentionally, and thereby inflicted damage on the examinees who should have been passed but had been rejected in the Examination for FY2007, and therefore, P has an obligation to pay reimbursement to the Prefecture jointly and severally. Accordingly, the Prefecture held the right to seek 28,778,376 yen as reimbursement from P, and hence, the Prefecture can make a claim against P for payment of 26,824,743 yen as calculated by deducting the amount paid by P from that amount of the right to seek reimbursement.

5. Contrary to the above, in response to the claim of the appellants to demand the appellee to make a claim for payment of money based on the right to seek reimbursement from P, the court of prior instance determined the amount of that right to seek reimbursement on the grounds that the relevant obligation to pay reimbursement is divisible. This determination contains violation of laws and regulations that obviously affects the judgment, and the counsel's argument on this point is well-grounded. According to the explanation stated above, the appellants' claim should be upheld to the extent to demand the appellee to make a claim against P for payment of 26,824,743 yen and the amount of money accrued thereon at the rate of 5% per annum for the period from April 17, 2013, until the date of completion of the payment. Consequently, the Court modifies the part of the judgment in prior instance concerning this claim of the appellants as indicated in paragraph 1 of the main text of the judgment.

On the other hand, the Court dismisses, without prejudice, the claim of the appellants to demand the appellee to make a claim for payment of money based on the right to seek reimbursement from Mr. and Mrs. Q and from S because the appellants have not submitted a document stating the reasons for a petition for acceptance of final appeal, and dismisses, with prejudice on the merit, the other claims of Appellant X1 and Appellant X2 because their reasons for a petition for acceptance of final appeal were excluded by an order to accept a final appeal.

Accordingly, the Court unanimously decides as set forth in the main text of the judgment. There is a concurring opinion by Justice UGA Katsuya.

The concurring opinion by Justice UGA Katsuya is as follows.

I agree with the court opinion, but I would like to give some supplementary comments regarding the approach taken by the court of prior instance in which it adopted the respondeat superior theory to explain the nature of the responsibility provided under Article 1, paragraph (1) of the State Redress Act, and according to this theory, it determined that the right to seek reimbursement under paragraph (2) of that Article substantially has a nature of unjust enrichment and therefore the three persons involved in the present case have a divisible obligation. There are two theories that explain the nature of the responsibility under paragraph (1) of that Article: respondeat superior theory, which means an employer is responsible for the employee's wrongful acts committed within the scope of the employment, and self-responsibility theory. As the basis for the respondeat superior theory, some conclude that the drafters of that Act intended to provide for respondeat superior because Dr. TANAKA Jiro, who was one of the drafters, adopted the respondeat superior theory. However, as Dr. TANAKA mentioned, the drafters considered modeling it after the German official liability law (Amtshaftung) and using the phrase "in the place of officials (an Stelle des Beamten)" in the process of drafting a bill of that Act, but they finally left this matter to scholars to theorize in the future, and therefore, it cannot be said that the drafters intended to provide for respondeat superior in that paragraph.

The practical benefit of making a distinction between the respondeat superior theory and the self-responsibility theory had been found that in cases where it is impossible to identify the public officer who inflicted damage or the act that caused damage (judgment of the Tokyo District Court, June 19, 1964, Ka-Minshu (lower court law report on civil cases) Vol. 15, No. 6, at 1438, judgment of the Tokyo District Court, January 28, 1970, Ka-Minshu Vol. 21, No. 1-2, at 32, and judgment of the Okayama District Court, Tsuyama Branch, April 24, 1973, Minshu Vol. 36, No. 4, at 542), or where the public officer who inflicted damage is not culpable (judgment of the Sapporo High Court, May 24, 1978, Ko-Minshu (high court law report on civil cases) Vol. 31, No. 2, at 231), the State would not be held responsible for compensation under the respondeat superior theory but would be held responsible under the self-responsibility theory. However, in 1976 (O) No. 1249, the judgment of the First Petty Bench of the Supreme Court of April 1, 1982, Minshu Vol. 36, No. 4, at 519, the Supreme Court held as follows, without clearly showing whether it adopted the respondeat superior theory or the self-responsibility theory: "Where public officers employed by the State or a public entity inflicted damage on another person in the course of performing a series of acts as their duties, even if it is impossible to specifically identify which of the public officers inflicted the damage by performing what kind of illegal acts, if it is found that the damage would have never been caused unless an illegal act committed by any of these public officers intentionally or negligently was included in said series of acts, and if there is a relationship where whichever of such illegal acts causes the State or the public entity, to which the public officers belong, to be held legally responsible for the damage, it is reasonable to consider that the State or the public entity cannot avoid the responsibility for compensation for the damage under the State Redress Act or the Civil Code only because of the fact that who or what act actually inflicted the damage cannot be identified." In addition, since the approach of regarding the negligence of public officers as the negligence of the organization to which they belong (e.g., judgment of the Tokyo High Court, December 18, 1992, Ko-Minshu Vol. 45, No. 3, at 212) is prevailing among the court precedents, it does not seem to be necessary to question the culpability of individual public officers. Thus, it is safe to say that the respondeat superior theory and the self-responsibility theory have almost lost their significance as the concepts that can serve as interpretative tools.

In the present case as well, even if the respondeat superior theory is adopted, this does not logically lead to the conclusion that the right to seek reimbursement substantially has a nature of unjust enrichment, but rather, irrespective of whether the respondeat superior theory or the self-responsibility theory is adopted, the public officers involved in the present case are considered to have an obligation to pay reimbursement under Article 1, paragraph (2) of the State Redress Act jointly and severally.

Justice HAYASHI Keiichi

Justice TOKURA Saburo

Justice MIYAZAKI Yuko

Justice UGA Katsuya

Justice HAYASHI Michiharu