2022.02.07

2021 (Gyo-Tsu) 73

Minshu Vol. 76, No. 2

Judgment concerning Article 19, paragraph (1) of the Act on Practitioners of Massage, Finger Pressure, Acupuncture, and Moxa-cauterization, etc. and Article 22, paragraph (1) of the Constitution

Case seeking revocation of a disposition of non-certification

Judgment of the Second Petty Bench, dismissed

Tokyo High Court, Judgment of December 8, 2020

Article 19, paragraph (1) of the Act on Practitioners of Massage, Finger Pressure, Acupuncture, and Moxa-cauterization, etc. is not in violation of Article 22, paragraph (1) of the Constitution.

(There is an opinion.)

Article 22, paragraph (1) of the Constitution and Article 1, Article 2, paragraphs (1) and (3), and Article 19, paragraph (1) of the Act on Practitioners of Massage, Finger Pressure, Acupuncture, and Moxa-cauterization, etc.

The Constitution of Japan

Article 22, paragraph (1)

Every person shall have freedom to choose and change his residence and to choose his occupation to the extent that it does not interfere with the public welfare.

Act on Practitioners of Massage, Finger Pressure, Acupuncture, and Moxa-cauterization, etc.

Article 1

A person other than a physician who intends to engage in the business of massage, finger pressure, acupuncture or moxa-cauterization must receive a license for a practitioner of massage and finger pressure, acupuncture or moxa-cauterization (hereinafter referred to as a "license"), respectively.

Article 2, paragraph (1)

A license is to be granted by the Minister of Health, Labour and Welfare to a person who is qualified to enter a university pursuant to the provisions of Article 90, paragraph (1) of the School Education Act (Act No. 26 of 1947) (in the case where a school certified by the Minister of Education, Culture, Sports, Science and Technology pursuant to the provisions of this paragraph is a university, including a person whose enrollment was approved by the university pursuant to the provisions of paragraph (2) of the same Article) and has acquired knowledge and skills in anatomy, physiology, pathology, hygienics, and other fields as necessary to become a practitioner of massage and finger pressure, acupuncture or moxa-cauterization for not less than three years at a school that was certified by the Minister of Education, Culture, Sports, Science and Technology or a training facility prescribed in the following items that was certified by a person set forth respectively therein as a school that conforms to the standards established by Order of the Ministry of Education, Culture, Sports, Science and Technology or Order of the Ministry of Health, Labour and Welfare, and has passed a national examination for practitioners of massage and finger pressure, acupuncture or moxa-cauterization conducted by the Minister of Health, Labour and Welfare (hereinafter referred to as an "examination"):

(i) the Minister of Health, Labour and Welfare: a training facility for practitioners of massage and finger pressure, a training facility for practitioners of massage and finger pressure and practitioners of acupuncture, a training facility for practitioners of massage and finger pressure and practitioners of moxa-cauterization or a training facility for practitioners of massage and finger pressure, practitioners of acupuncture, and practitioners of moxa-cauterization;

(ii) a prefectural governor: a training facility for practitioners of acupuncture, a training facility for practitioners of moxa-cauterization or a training facility for practitioners of acupuncture and practitioners of moxa-cauterization.

Article 2, paragraph (3)

(iii) When a person who establishes a school or training facility referred to in paragraph (1) intends to change the curricula or capacity of students of the school or any other matter specified by Order of the Ministry of Education, Culture, Sports, Science and Technology or Order of the Ministry of Health, Labour and Welfare out of the matters provided in the preceding paragraph, they must obtain approval of the Minister of Education, Culture, Sports, Science and Technology, the Minister of Health, Labour and Welfare or a prefectural governor referred to in the same paragraph in advance as specified by Order of the Ministry of Education, Culture, Sports, Science and Technology or Order of the Ministry of Health, Labour and Welfare.

Article 19, paragraph (1)

Until otherwise provided for by law, when the Minister of Education, Culture, Sports, Science and Technology or the Minister of Health, Labour and Welfare finds it necessary for preventing practitioners of massage and finger pressure who are visually disabled from having extreme difficulty in maintaining their livelihoods in consideration of the percentage of persons other than those with visual disabilities in the total number of practitioners of massage and finger pressure, the percentage of persons other than those with visual disabilities in the total number of students who are educated or trained at a school or training facility for practitioners of massage and finger pressure, and other circumstances, they may decide not to grant either the certification referred to in Article 2, paragraph (1) in relation to a school or training facility for practitioners of massage and finger pressure which educates or trains persons other than those with visual disabilities or the approval referred to in paragraph (3) of the same Article in relation to an increase in the capacity of the students of such school or training facility.

The final appeal is dismissed.

The costs of the final appeal shall be borne by the appellant of final appeal.

Concerning the reasons for final appeal stated by the counsel for final appeal, ORITA Yasuhiro, et al.

No. 1 Outline of the case, etc.

1. The appellant, who establishes a professional training college, filed an application for certification referred to in Article 2, paragraph (1) of the Act on Practitioners of Massage, Finger Pressure, Acupuncture, and Moxa-cauterization, etc. (Act No. 217 of 1947; hereinafter referred to as the "Act") in relation to a training facility for practitioners of massage and finger pressure which trains persons other than those with visual disabilities (meaning persons with visual disabilities provided in Article 18-2, paragraph (1) of the Act; the same applies hereinafter) under the Act. However, the appellant received a disposition not to grant the aforementioned certification (hereinafter referred to as the "Disposition") from the Minister of Health, Labour and Welfare pursuant to the provisions of Article 19, paragraph (1) of the Act (hereinafter referred to as the "Provisions") on February 5, 2016, on the grounds that the Disposition is necessary for preventing practitioners of massage and finger pressure who are visually disabled from having extreme difficulty in maintaining their livelihoods. Therefore, in this case, the appellant alleges that the Provisions are in violation of Article 22, paragraph (1) of the Constitution, etc. and are thus invalid, and demands that the appellee revoke the Disposition.

2.(1) Article 1 of the Act provides that a person other than a physician who intends to engage in the business of massage, finger pressure, acupuncture or moxa-cauterization must receive a license for a practitioner of massage and finger pressure, acupuncture or moxa-cauterization, respectively.

(2) Article 2, paragraph (1) of the Act provides as follows: the aforementioned license is to be granted by the Minister of Health, Labour and Welfare to a person who is qualified to enter a university and has acquired knowledge and skills in anatomy, physiology, pathology, hygienics, and other fields as necessary to become a practitioner of massage and finger pressure, acupuncture or moxa-cauterization at a school certified by the Minister of Education, Culture, Sports, Science and Technology or a training facility certified by the Minister of Health, Labour and Welfare, etc., as a school that conforms to the standards established by Order of the Ministry of Education, Culture, Sports, Science and Technology or Order of the Ministry of Health, Labour and Welfare for not less than three years, and has passed a national examination for practitioners of massage and finger pressure, acupuncture or moxa-cauterization conducted by the Minister of Health, Labour and Welfare. Item (i) of the same paragraph provides that the certification of a training facility for practitioners of massage and finger pressure as prescribed in the same item is granted by the Minister of Health, Labour and Welfare. In addition, paragraph (3) of the same Article provides that when a person who establishes a school or training facility referred to in paragraph (1) of the same Article intends to change the capacity of students, etc., they must obtain approval of the Minister of Education, Culture, Sports, Science and Technology, the Minister of Health, Labour and Welfare, etc. in advance.

(3) The Provisions are established in the Supplementary Provisions of the Act, and stipulate as follows: "Until otherwise provided for by law, when the Minister of Education, Culture, Sports, Science and Technology or the Minister of Health, Labour and Welfare finds it necessary for preventing practitioners of massage and finger pressure who are visually disabled from having extreme difficulty in maintaining their livelihoods in consideration of the percentage of persons other than those with visual disabilities in the total number of practitioners of massage and finger pressure, the percentage of persons other than those with visual disabilities in the total number of students who are educated or trained at a school or training facility for practitioners of massage and finger pressure, and other circumstances, they may decide not to grant either the certification referred to Article 2, paragraph (1) in relation to a school or training facility for practitioners of massage and finger pressure which educates or trains persons other than those with visual disabilities or the approval referred to in paragraph (3) of the same Article in relation to an increase in the capacity of the students of such school or training facility." In addition, Article 19, paragraph (2) of the Act provides that when the Minister of Education, Culture, Sports, Science and Technology or the Minister of Health, Labour and Welfare intends to make a disposition not to grant certification or approval pursuant to the Provisions, they must hear the opinions of the Medical Ethics Council in advance.

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

(1) The Provisions were established by the amendment of the Act by Act No. 120 of 1964. The aforementioned Act No. 120 of 1964 was established in June 1964 as a result of approval of a bill submitted by the Committee on Social and Labour Affairs of the House of Representatives at the 46th session of the Diet. At the meeting of the same committee, a member described the purport of the Provisions as follows: the massage business has been considered as the most appropriate occupation for persons with visual disabilities since ancient times; however, recently, there has been a remarkable tendency that the ‘territory’ in which they practice their occupations is being reduced by persons without visual disabilities; therefore, a measure is taken to give priority to persons with visual disabilities in relation to an occupation as a practitioner of massage and finger pressure (appellation of the time was a "practitioner of massage"; hereinafter referred to as a "practitioner of massage and finger pressure" irrespective of the time).

The content of the Provisions has never been substantially amended up to the present time.

(2) The status of engagement in work, etc. of persons with visual disabilities is roughly as follows.

A. The changes in the total number of persons with visual disabilities (estimate of those of 18 years of age or older) is as stated in the "Total number of persons with visual disabilities" column in Attachment 1 of the judgment in first instance, and the total number was 202,000 in 1960 and 310,000 in 2006. The changes in the number of visually disabled persons with a job and the percentage of such persons in the total number of persons with visual disabilities (rate of persons engaged in work) are as stated in the "Persons with a job out of persons with visual disabilities" column in the same Attachment, and the number and percentage were 72,114 and 35.7% in 1960 and 66,340 and 21.4% in 2006, respectively. In addition, the changes in the number of visually disabled persons who engage in the business of massage, finger pressure, acupuncture or moxa-cauterization and the percentage of such persons in the total number of visually disabled persons with a job are as stated in the "Practitioners of massage, finger pressure, acupuncture or moxa-cauterization out of persons with a job" column in the same Attachment, and the number and percentage were 27,548 and 38.2% in 1960 and 19,637 and 29.6% in 2006, respectively.

B. In 2003, among practitioners of massage and finger pressure, acupuncture or moxa-cauterization who have received the issuance of a physical disability certificate pertaining to visual disabilities, the percentage of persons with severe visual disabilities as categorized into Grade 1 or 2 was 83.8%.

C. In the overall number of cases of employment referrals for persons with visual disabilities at public employment security offices (named "Hello Work"), the percentage of cases pertaining to occupations based on licenses for practitioners of massage and finger pressure, acupuncture or moxa-cauterization had constantly been over 50% (over 70% as far as persons with severe visual disabilities are concerned) for the period from fiscal 2006 to 2014.

D. In 2013, the average value of the annual income of practitioners of massage and finger pressure, acupuncture or moxa-cauterization was 2,900,000 yen for persons with visual disabilities and 6,362,000 yen for persons without visual disabilities. Of which, for persons with visual disabilities, the percentage of those whose annual income was 3,000,000 yen or less was 76.3%.

E. The changes in the number of students at special-needs schools that provide education to persons with visual disabilities and other data are as stated in Attachment 2 of the judgment in first instance. The number of students in the courses for training practitioners of massage and finger pressure and courses for training practitioners of massage and finger pressure, acupuncture, and moxa-cauterization of upper secondary schools in which students take subjects necessary to take a national examination for practitioners of massage and finger pressure has been on the decrease.

(3) The status of training of practitioners of massage and finger pressure, etc. is as summarized below.

A. In 1962, the total number of practitioners of massage and finger pressure was 51,477, and regarding the total, the percentage of persons other than those with visual disabilities (20,619 persons) was 40.1%. On the other hand, in 2014, the total number of practitioners of massage and finger pressure was 113,215, and regarding the total, the percentage of persons other than those with visual disabilities (87,216 persons) was 77.0%.

B. The capacity (in one grade) of schools and training facilities for practitioners of massage and finger pressure (hereinafter schools and training facilities are collectively referred to as "training facilities, etc.") was 3,980 in total in fiscal 1964. The capacity was as stated in Attachment 3 of the judgment in first instance in fiscal 1997 and thereafter, and was 2,973 in total in fiscal 1997 and 2,706 in total in fiscal 2015. In the aforementioned capacity, the percentage of persons other than those with visual disabilities was 36.8% in fiscal 1964, but increased to 40.7% in fiscal 1997 and 45.8% in fiscal 2015.

C. In fiscal 2015, there were a total of 21 training facilities, etc. for practitioners of massage and finger pressure targeting persons other than those with visual disabilities in 10 prefectures, and the capacity (in one grade) thereof was 1,239 in total.

D. In fiscal 2015, the percentage of the number of persons who took entrance examinations for training facilities targeting persons other than those with visual disabilities in the total capacity of the students of those training facilities was 149.2% for daytime training facilities for practitioners of massage and finger pressure, 118.6% for night-time training facilities for the same, 202.3% for daytime training facilities for practitioners of massage, finger pressure, acupuncture, and moxa-cauterization, and 296.6% for night-time training facilities for the same.

No. 2 Concerning the part arguing that the Provisions are in violation of Article 22, paragraph (1) of the Constitution in the reasons for final appeal

1. In light of the position of training facilities, etc. under law, it can be said that the Provisions set a regulation with the nature of a license system in relation to the establishment of training facilities, etc. for practitioners of massage and finger pressure targeting persons other than those with visual disabilities and increases in the capacity of the students of such training facilities, etc., and thereby directly restrict the freedom of occupation of persons who establish the aforementioned training facilities and indirectly restrict the freedom of occupation of persons other than those with visual disabilities who intend to receive education or training at the aforementioned training facilities, etc. and engage in the business of massage or finger pressure by obtaining a license, respectively.

(2) Article 22, paragraph (1) of the Constitution guarantees not only the freedom to choose an occupation in a narrow sense but also the freedom of occupational activities. As measures to regulate such freedom of occupation take various forms according to circumstances, their conformity to the same paragraph cannot be uniformly discussed and must be carefully determined after examining and weighing the purpose, necessity, and content of the relevant regulation, as well as the nature and content of the freedom of occupation restricted by the regulation, and the degree of the restriction in relation to a specific regulatory measure. In this case, examination and weighing as mentioned above primarily fall under the authority and responsibility of the legislature. As long as the purpose of a regulation is found to be in accordance with public welfare, the court should respect the determinations of the legislature concerning the specific content, necessity, and reasonableness of the regulatory measure taken for that purpose as the issues of legislative policy in so far as those determinations remain within the scope of the reasonable discretion of the legislature. The broadness of the scope of the reasonable discretion can naturally vary due to the nature of the matter. The court thus should determine the scope of the reasonable discretion in light of the nature and content of the purpose, subject, method, etc. of a specific regulation.

In general, a license system imposes constraints on the freedom to choose an occupation in a narrow sense itself beyond mere regulations on the content and form of occupational activities, and it is a strong restriction on the freedom of occupation. Therefore, it should be said that in order to affirm the constitutionality of a license system, the license system is, in principle, required to be a necessary and reasonable measure for important public interest (in relation to the above, see 1968 (Gyo-Tsu) 120, the judgment of the Grand Bench of the Supreme Court of April 30, 1975, Minshu Vol. 29, No. 4, at 572).

(3) In light of the background to the establishment of and the content of the Provisions, the Provisions are considered to impose a regulation on the freedom of occupation of persons other than those with visual disabilities, etc. in relation to an occupation as a practitioner of massage and finger pressure with focus on the characteristics, etc. thereof in order to secure the territory of occupations for persons with visual disabilities of a certain level or higher for the purpose of protecting such persons who are generally in an economically vulnerable position due to reasons such as that the occupations they can engage in are limited due to their disabilities. It is clear that the aforementioned purpose is in accordance with public welfare. In determining whether it is necessary to take such regulatory measure for that purpose and what specific regulatory measure is appropriate and reasonable therefor, it is necessary to collect accurate basic information about the actual conditions of the subject socioeconomy, etc., make expert and technical evaluations, including future predictions, in relation to wide-ranging and interrelated conditions, and make a comprehensive policy determination concerning what method is reasonable to protect persons with visual disabilities and what degree of protection is reasonable for such persons based on those evaluations from the perspective of overall national politics, including social welfare, socioeconomy, and national finance. The issue of the necessity and reasonableness of such regulatory measure should be left to the policy and technical determination of the legislature, and it is considered that the court should basically respect the discretionary determination of the legislature.

(4) For the reasons described above, it should be said that the Provisions cannot be considered to be in violation of the provisions of Article 22, paragraph (1) of the Constitution unless it is clear that the legislature's determination concerning the necessity and reasonableness of a measure to be taken for the purpose of important public interest deviates from the scope of the legislature's political and technical discretion and is extremely unreasonable.

2.(1) According to the aforementioned facts, persons with visual disabilities can engage only in limited occupations due to their disabilities, and the rate of such persons engaged in work is generally not high. Since before the enforcement of the Provisions, practitioner of massage and finger pressure has been considered as an occupation that fits the disabilities of persons with visual disabilities, and many such persons have engaged in this occupation. After the enforcement, the number and percentage of persons with visual disabilities who are practitioners of massage and finger pressure have been on the decrease. However, even at the time of the Disposition, a considerable percentage of persons with visual disabilities were working as practitioners of massage and finger pressure, and practitioner of massage and finger pressure can also be considered as one of the major occupations which even persons with severe visual disabilities can have an opportunity to engage in. Actually, a practitioner of massage and finger pressure is designated as a specified occupation pertaining to persons with prescribed visual disabilities (an occupation that is found to be also suited to the capabilities of the physically disabled who are able to work but have special difficulty in engaging in ordinary jobs due to the severity of their disabilities) by Article 48, paragraph (1) of the Act to Facilitate the Employment of Persons with Disabilities and Article 11 of the Order for Enforcement of the Act to Facilitate the Employment of Persons with Disabilities. On the other hand, the number and percentage of practitioners of massage and finger pressure other than those with visual disabilities and the percentage of persons other than those with visual disabilities in the capacity of the students of training facilities, etc. for practitioners of massage and finger pressure have been on the increase. In addition, among practitioners of massage and finger pressure, the income of persons with visual disabilities is remarkably lower than that of persons without visual disabilities.

In consideration of these circumstances and the fact that guaranteeing persons with visual disabilities an opportunity to engage in an occupation that fits their disabilities can also be considered to have a positive significance in the promotion of their self-reliance and participation in social and economic activities, it cannot be considered unreasonable to determine that it is necessary to suppress the increase of practitioners of massage and finger pressure who do not have visual disabilities in order to secure the territory of the occupation as a practitioner of massage and finger pressure for persons with visual disabilities of a certain level or higher for the important public interest of the protection of such persons, even in light of the fact that certain social welfare measures, such as disability basic pension, have been taken for persons with visual disabilities.

(2) Based on the fact that the Act provides that it is necessary to receive education or training at a certified training facility, etc. to receive a license for a practitioner of massage and finger pressure (Article 2, paragraph (1) of the Act), it is reasonably rational, as a regulatory means, to make it possible not to grant certification of a training facility, etc. for practitioners of massage and finger pressure targeting persons other than those with visual disabilities or approval of an increase in the capacity of students of such training facility, etc. for the purpose of the aforementioned suppression.

The Provisions do not totally prohibit the establishment of the aforementioned training facilities, etc. or an increase in the capacity of the students thereof, but only stipulate that the Minister of Education, Culture, Sports, Science and Technology or the Minister of Health, Labour and Welfare may decide not to grant the aforementioned certification or approval only when they find it necessary for the purpose of preventing practitioners of massage and finger pressure who are visually disabled from having extreme difficulty in maintaining their livelihoods in consideration of various circumstances. Furthermore, the Act also provides that when the Minister of Education, Culture, Sports, Science and Technology or the Minister of Health, Labour and Welfare intends to make a disposition not to grant the aforementioned certification or approval, they must hear the opinions of the Medical Ethics Council consisting of persons with relevant expertise, etc. in advance (Article 19, paragraph (2) of the Act). Thereby, the Act also takes a measure to secure the appropriateness of such disposition.

Moreover, persons other than those with visual disabilities who intend to engage in the business of massage or finger pressure can receive a license by receiving education or training at existing training facilities, etc. and passing a national examination for practitioners of massage and finger pressure. According to the aforementioned facts, even at the time of the Disposition, there were a total of 21 training facilities, etc. for practitioners of massage and finger pressure targeting persons other than those with visual disabilities in 10 prefectures. The capacity of students in one grade of those training facilities, etc. reached a considerable number, i.e.,: 1,239 students in total, and the ratio of the number of persons who took entrance examinations for the aforementioned training facilities, etc. to the capacity of the students of those training facilities, etc. cannot be considered to be extremely high. According to these facts, the degree of restriction on the freedom of occupation of the aforementioned persons by the Provisions can be considered to be limited.

(3) For the reasons described above, it cannot be said that it is clear that the legislature's determination concerning the necessity and reasonableness of a measure to be taken for the purpose of important public interest deviates from the scope of its political and technical discretion and is extremely unreasonable.

3. Therefore, it cannot be said that the Provisions are in violation of Article 22, paragraph (1) of the Constitution.

It should be said that the aforementioned point is clear in light of the purport of the judgment of the Grand Bench of this Court (1970 (A) 23, the judgment of the Grand Bench of the Supreme Court of November 22, 1972, Keishu Vol. 26, No. 9, at 586). The arguments made by the counsel for final appeal are not acceptable.

No. 3 Concerning other reasons for final appeal

The counsel for final appeal argues unconstitutionality, but the argument lacks its premise and does not constitute any of the grounds provided in Article 312, paragraphs (1) and (2) of the Code of Civil Procedure.

Accordingly, the Court unanimously decides as set forth in the main text of the judgment. There is an opinion by Justice KUSANO Koichi.

The opinion stated by Justice KUSANO Koichi is as follows.

I agree with the conclusion of the majority opinion and also basically agree to the reasons therefor. However, my opinion has some differences from the majority opinion in the logic to reach the conclusion. Therefore, I want to explain my thoughts in detail below.

1. The Act separately provides for the licenses and national examinations for engaging in the businesses of practicing [i] massage or finger pressure (hereinafter merely referred to as "massage"), [ii] acupuncture, and [iii] moxa-cauterization, respectively. However, in considering the issue of conformity to Article 22, paragraph (1) of the Constitution, it is not necessary to understand differences among occupations in accordance with the classification of licenses and national examinations under the current Act. I think that it is reasonable to understand an activity to provide goods or service, which provides utility that cannot be achieved by procuring different goods or service at an equivalent cost, to be one independent occupation because one of the major meanings of occupational activities exists in the utility of goods and services produced by the occupational activities (increase of benefits). In light of this point, the business of practicing either acupuncture or moxa-cauterization or both of them and massage in combination on one person who is the recipient of the practice (hereinafter referred to as the "comprehensive practice business") can be considered as a unique occupation that differs from occupations in which each of those practices is independently conducted. This is [i] because the comprehensive practice business is a business that can provide utility, which cannot be achieved by individually conducting each of these practices, to a person who is the recipient of the practice through combination of the aforementioned practices and [ii] because it is impossible to achieve equivalent utility at an equivalent cost in the absence of a person who can conduct the comprehensive practice business (hereinafter referred to as a "comprehensive practitioner") (incidentally, the business of practicing only massage is referred to as the "massage business," and a person who engages in massage business is referred to as a "massage practitioner"; the business of practicing only acupuncture or moxa-cauterization or both of them is referred to as the "acupuncture and/or moxa-cauterization business," and a person who engages in the acupuncture and/or moxa-cauterization business is referred to as an "acupuncture and/or moxa-cauterization practitioner").

Thus, the business of training comprehensive practitioners can also be considered as a unique occupation that differs from the business of training only massage practitioners and the business of training only acupuncture and/or moxa-cauterization practitioners. Then, a training facility for which the appellant filed an application for certification in this case is one that makes it possible for a person to be qualified to take all national examinations for practitioners of massage and finger pressure, practitioners of acupuncture, and practitioners of moxa-cauterization by receiving training there, and hence, the training facility is considered to have the nature of a training facility, etc. for comprehensive practitioners (hereinafter referred to as a "training facility, etc. for comprehensive practitioners") (hereinafter I advance my theory while considering that a training facility, etc. for practitioners of massage and finger pressure, practitioners of acupuncture, and practitioners of moxa-cauterization under the current Act falls under a training facility, etc. for comprehensive practitioners). Incidentally, although training facilities, etc. for acupuncture and/or moxa-cauterization practitioners are not subject to the application of the Provisions, training facilities, etc. for comprehensive practitioners become subject to the application of the Provisions as they grant a qualification to take a national examination for practitioners of massage and finger pressure and thus fall under training facilities, etc. for practitioners of massage and finger pressure.

2. One of the major meanings of occupational activities exists in the utility of goods and services produced by the occupational activities, as I mentioned before. Then, it can be considered as a universal truth that the additional value created by this utility provides benefits to both the suppliers and consumers of the goods and services through the workings of the market. It seems that the issue of conformity to Article 22, paragraph (1) of the Constitution has been discussed mainly as the issue of a constraint on the benefits of the suppliers of goods and services. However, a constraint on an occupational activity obstructs the fulfilment of demand for goods and services produced by the occupational activity and leads to a decrease in the benefits of the consumers of the goods and services. Therefore, in considering the reasonableness of a constraint on an occupational activity, it is also necessary to consider a decrease in the benefits of consumers caused by the constraint.

In discussing the benefits of consumers, it is necessary to consider not only demand for specific goods or service but also the derived demand thereof (new demand created for a production factor of certain goods or service as a result of occurrence of demand for the goods or service). When considering this in line with this case, as a comprehensive practitioner is the production factor of the comprehensive practice business, demand for the business of training comprehensive practitioners is just the derived demand of demand for the comprehensive practice business. Therefore, in considering a decrease in the benefits of consumers caused by a constraint on the business of training comprehensive practitioners, it is necessary to examine both [i] demand for the business of training comprehensive practitioners and [ii] demand for the comprehensive practice business.

3. In light of the above, some matters that should have originally been further examined seem to emerge. Out of those matters, I want to point out the most important matter.

That is a matter concerning whether or not excess demand occurred for the business of training comprehensive practitioners and the comprehensive practice business and the degree of such demand.

In this regard, some matters can be learned even from the facts found by the court of prior instance. That is, during the period from fiscal 1998 to 2015, the number of training facilities, etc. for acupuncture and/or moxa-cauterization practitioners, which are exempted from the application of the Provisions, and the capacity of the students in one grade thereof significantly increased from 14 to 93 and from 875 in total to 5,665 in total, respectively. On the other hand, during the aforementioned period, the number of training facilities, etc. for comprehensive practitioners targeting persons other than those with visual disabilities and the capacity of the students in one grade thereof only slightly increased from 18 to 19 and from 903 in total to 974 in total, respectively. In addition, the number of training facilities, etc. for comprehensive practitioners targeting persons with visual disabilities and the capacity of the students in one grade thereof decreased from 69 to 63 and from 958 in total to 719 in total, respectively. These facts show the following situation: there was excess demand for the business of training comprehensive practitioners at least during the aforementioned period, but the fulfillment of that demand has been obstructed by the application of the Provisions to training facilities, etc. for comprehensive practitioners; nevertheless, the number of persons with visual disabilities who newly engage in the comprehensive practice business did not increase. Then, as demand for the business of training comprehensive practitioners is the derived demand of demand for the comprehensive practice business, the aforementioned facts also show the following situation: although there was also excess demand for the comprehensive practice business during the aforementioned period, the fulfillment of the aforementioned demand had been obstructed because the number of persons with visual disabilities who became comprehensive practitioners did not increase while the number of persons other than those with visual disabilities who became comprehensive practitioners was restricted. If the aforementioned situations were also established at the time of the Disposition and it caused a decrease in the benefits of the consumers of the comprehensive practice business, the constitutionality of the Provisions should naturally be examined also in consideration of these situations.

Incidentally, even if there was a decrease in the benefits of the consumers of the comprehensive practice business, it would still be unwise to immediately determine that the application of the Provisions to training facilities, etc. for comprehensive practitioners is unreasonable for that reason. This is because in the case of eliminating the application of the Provisions to training facilities, etc. for comprehensive practitioners, if a considerable number of comprehensive practitioners who newly acquire qualification (do not dedicate themselves to the comprehensive practice business but) enter into the massage business and thus become consequently likely to obstruct the securing of the territory of occupations for persons with visual disabilities in the massage business, there is still room for recognizing the reasonableness of making training facilities, etc. for comprehensive practitioners subject to the application of the Provisions. In order to make a correct determination concerning this point, it is necessary to comprehensively examine the point in consideration of whether there is excessive demand for the comprehensive practice business and the degree of such demand and the aforementioned issue of new entry, etc. (including the issue of the feasibility of measures to prevent the aforementioned new entry) in addition to the issues already examined in this case.

4. As mentioned above, I think that the issue of a constraint on a unique occupation, the business of training comprehensive practitioners, is included in the constitutional issues in this case. However, even so, the conclusion in this case is not naturally reversed. In addition, in this case, the appellant has not at least explicitly alleged the manner of understanding the relevant occupation as mentioned above. Therefore, it cannot be said that the court of prior instance's failure to conduct proceedings and make a determination especially from such perspective is illegal. Then, as long as the determination of the court of prior instance and the content of the counsel's arguments against the determination are assumed as a premise, the counsel's arguments are not found to be well-grounded, as pointed out in the majority opinion. Therefore, I also think that it is reasonable to dismiss the final appeal.

Justice KANNO Hiroyuki

Justice MIURA Mamoru

Justice KUSANO Koichi

Justice OKAMURA Kazumi