1974.11.06

1969 (A) 1501

Keishu Vol. 28, No. 9

Judgment concerning Article 21 of the Constitution and the prohibition of posting or distribution of a document with the political purpose of supporting a specific political party under Article 102, paragraph (1) of the National Public Service Act and paragraph (5), item (iii) and paragraph (6), item (xiii) of Rules of the National Personnel Authority 14-7

Case charged for violation of the National Public Service Act

Judgment of the Grand Bench

Sapporo High Court, Judgment of June 24, 1969

1. The prohibition of posting or distribution of a document with the political purpose of supporting a specific political party under Article 102, paragraph (1) of the National Public Service Act and paragraph (5), item (iii) and paragraph (6), item (xiii) of Rules of the National Personnel Authority 14-7 is not in violation of Article 21 of the Constitution.

2. The penal provisions of Article 110, paragraph (1), item (xix) of the National Public Service Act are not in violation of Article 31 of the Constitution.

3. The penal provisions of Article 110, paragraph (1), item (xix) of the National Public Service Act are not in violation of Article 21 of the Constitution.

4. Delegation of authority to the rules of the National Personnel Authority under Article 102, paragraph (1) of the National Public Service Act cannot be considered as the unconstitutional delegation of legislation just because it is the uniform delegation of authority to the rules of the National Personnel Authority regarding the establishment of provisions on political acts subject to a disciplinary action under Article 82 of the same Act and a criminal penalty under Article 110, paragraph (1), item (xix) of the same Act .

5. The application of the penal provisions of Article 110, paragraph (1), item (xix) of the National Public Service Act to the posting or distribution of a document in this case (see the text of the judgment) that is in violation of prohibition under Article 102, paragraph (1) of the same Act and paragraph (5), item (iii) and paragraph (6), item (xiii) of Rules of the National Personnel Authority 14-7 is not in violation of Articles 21 and 31 of the Constitution even where the posting or distribution was conducted by a non-managerial public employee of a government enterprise whose duty is just to provide routine labor outside working hours without utilizing the State's facility, and without exploiting their official capacities or without having the intention to harm the fairness of the exercise thereof, and the posting or distribution was conducted as part of labor union activities.

Article 102, paragraph (1) and Article 110, paragraph (1), item (xix) of the National Public Service Act, paragraph (5), item (iii) and paragraph (6), item (xiii) of Rules of the National Personnel Authority 14-7, and Article 15, paragraph (1) and Articles 16, 21, 31, and 41 of the Constitution

National Public Service Act

(Restriction on Political Acts)

Article 102(1) Officials shall not solicit, or receive, or be in any manner concerned in soliciting or receiving any subscription or other benefit for any political party or political purpose, or engage in any political acts as provided for by rules of the National Personnel Authority other than to exercise his/her right to vote.

Article 110(1) Any person who falls under any of the following items shall be punished by imprisonment with work for not more than three years or a fine of not more than one hundred thousand yen:

(xix)Any person who has violated the restrictions on political acts provided for in paragraph 1 of Article 102;

Rules of the National Personnel Authority 14-7

Paragraph (5), item (iii)

The term "political purposes" as used in the Act and the Rules means the following acts. Even if an act is conducted for a political purpose, it is not in violation of the provisions of Article 102, paragraph (1) of the Act unless it is included in the political acts specified in paragraph (6):

(iii) supporting or opposing a specific political party or any other political organization;

Paragraph (6), item (xiii)

The political acts provided in Article 102, paragraph (1) of the Act mean the following acts:

(xiii) issuing a signed or unsigned document, picture, disc or figure with a political purpose, providing the same for a circular, posting or distributing the same, reading out the same to many persons or having many persons hear it, or writing or editing the same for the purpose of providing it for these purposes;

The Constitution of Japan

Article 15.paragraph (1)
The people have the inalienable right to choose their public officials and to dismiss them.

Article 16. Every person shall have the right of peaceful petition for the redress of damage, for the removal of public officials, for the enactment, repeal or amendment of laws, ordinances or regulations and for other matters; nor shall any person be in any way discriminated against for sponsoring such a petition.

Article 21. Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.

No censorship shall be maintained, nor shall the secrecy of any means of communication be violated.

Article 31. No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law.

Article 41. The Diet shall be the highest organ of state power, and shall be the sole law-making organ of the State.

The judgment in prior instance and the judgment in first instance are quashed.

The accused is punished by a fine of 5,000 yen.

If the accused defaults in payment of the aforementioned fine in full, he/she will be detained in a workhouse for a term calculated by converting 1,000 yen to one day.

The court costs in prior instance and first instance shall be borne by the accused.

Concerning Reason IV-(1) for final appeal stated by the public prosecutor

No 1. Developments of this case

The summary of the charged facts of this case is as follows: the accused is a postal service officer who works at Onishibetsu Post Office in a-mura, Souya-gun, Hokkaido and who had served as the secretary general of the council of Labor Union A; on the occasion of the 31st election of members of the House of Representatives that was publicly notified on January 8, 1967, the accused posted six copies of the election poster of a candidate on the ticket of the Social Democratic Party of Japan at the public posting areas on the same date for the purpose of supporting the same party in accordance with the decision of the aforementioned council; in addition, around that time, the accused distributed about 184 copies of the aforementioned poster in total on four occasions while requesting others to post them.

Article 102, paragraph (1) of the National Public Service Act provides as follows with regard to the national public employees of regular service (hereinafter referred to as "public employees"): "An official must not solicit, receive, or be in any manner involved in soliciting or receiving any donation or other benefit for any political party or political purpose, nor must engage in any political acts as provided for by rules of the National Personnel Authority other than to exercise the right to vote." Based on delegation by the provisions of this paragraph, Rules of the National Personnel Authority 14-7 (Political Acts) (hereinafter referred to as the "Rules") provide for the specific content of "political acts" prohibited by the aforementioned provisions, and Article 110, paragraph (1), item (xix) of the National Public Service Act provides that a person who violated the aforementioned prohibition is punished by imprisonment with required labor for not more than three years or a fine of not more than 100,000 yen. The aforementioned acts of the accused fall under the political acts of posting or distributing a document with the purpose of supporting a specific political party as referred to in paragraph (5), item (iii) and paragraph (6), item (xiii) of the Rules, that is, a document with a political purpose. Therefore, the penal provisions of Article 110, paragraph (1), item (xix) of the National Public Service Act should be applied to the aforementioned acts of the accused. For this reason, the accused was prosecuted.

In the judgment in first instance, the court determined that all the aforementioned facts can be found based on the related evidence and that those facts fall under the aforementioned provisions of the Rules. However, the court acquitted the accused for the following reason: while Article 110, paragraph (1), item (xix) of the National Public Service Act provides for the imposition of a criminal penalty on acts referred to in paragraph (6), item (xiii) of the Rules that were conducted by a non-managerial public employee of a government enterprise, whose duty is just to provide routine labor, outside working hours without utilizing the State's facility and without exploiting their official capacities or without having the intention to harm the fairness of the exercise thereof and that are found to have been conducted as part of labor union activities; the provisions of the same item go beyond reasonable and minimum necessary limits as a sanction against an act to the extent that they are applied to such acts of the accused, and are in violation of Articles 21 and 31 of the Constitution.

The judgment in prior instance dismissed the appeal to the court of second instance filed by the public prosecutor and held that the determination of the judgment in first instance is reasonable in its conclusion.

The reasons for final appeal stated by the public prosecutor are arguments of errors in the interpretation of Articles 21 and 31 of the Constitution in relation to the determinations of the judgment in first instance and the judgment in prior instance.

No. 2 Opinion of this Court

1. Constitutionality of the prohibition of the political acts in question

It is found that the judgment in first instance and the judgment in prior instance determined that the application of the penal provisions of Article 110, paragraph (1), item (xix) of the National Public Service Act to the acts in question of the accused (hereinafter referred to as the "Acts") is in violation of Articles 21 and 31 of the Constitution based on the idea that there is a question about reasonableness regarding the fact that Article 102, paragraph (1) of the National Public Service Act and paragraph (5), item (iii) and paragraph (6), item (xiii) of the Rules uniformly prohibit a public employee's acts of posting or distributing a document with the political purpose of supporting a specific political party by evaluating such acts as illegal without making a distinction based on the type of job or official authority and without questioning the form and intention of the acts, in consideration of the importance of the freedom of expression in a democratic state. Therefore, first of all, this point is examined.

(1) The freedom of expression guaranteed by Article 21 of the Constitution forms the political foundation of a democratic state and is especially important out of the fundamental human rights of the people, and it cannot be restricted even by law without good reason. As political acts basically have an aspect as the expression of a political opinion in addition to having an aspect as an action, it is clear that they are guaranteed by Article 21 of the Constitution in respect of the aspect of being the expression of a political opinion. The political acts that are prohibited for public employees under Article 102, paragraph (1) of the National Public Service Act and the Rules are also acts that more or less include the expression of a political opinion. Therefore, if the people in general are prohibited from conducting such acts, needless to say, it will raise the issue of unconstitutionality.

However, the prohibitions of political acts under Article 102, paragraph (1) of the National Public Service Act and the Rules are originally not directed to the people in general but is directed only to public employees. Incidentally, it is a matter of course that national politics based on the people's trust is to be implemented with emphasis on serving the entire people. In addition, from the provisions of Article 15, paragraph (2) of the Constitution stating "All public officials are servants of the whole community and not of any group thereof," it can also be understood that public duties should be administered not as service to any group of the people but as service to the entire people. It is considered that among public duties, those in the administrative field must be administered in light of the structure of the form of government provided by the Constitution, with the aim of ensuring the faithful performance of policies that were determined after going through the political process based on the parliamentary democracy, with sole emphasis on serving the entire people, and without political bias. For that purpose, it is necessary that individual public employees engage in the performance of their duties without politically leaning to a particular party or faction while strictly sticking with a neutral position. That is, the ensuring of neutral administrative operations and the maintenance of the people's trust therein meet the requirement of the Constitution, and it should be said that the maintenance of the political neutrality of public employees is nothing less than an important benefit of the entire people. Therefore, it must be said that it is constitutionally permitted to prohibit public employees' political acts that are likely to impair the political neutrality of public employees as long as the prohibition remains within reasonable, necessary, and unavoidable limits.

(2) When determining whether the prohibition of public employees' political acts under Article 102, paragraph (1) of the National Public Service Act and the Rules remains within reasonable, necessary, and unavoidable limits, it is necessary to examine the issue from the following three points; the purpose of the prohibition, relationship between that purpose and prohibited political acts, and balance between benefits from the prohibition of political acts and benefits lost by the prohibition.

On that basis, first, when considering the purpose of the prohibition and the relationship between the purpose and prohibited acts, if all political acts of public employees are freely left to their discretion, the political neutrality of public employees is naturally impaired, which is likely to cause a partisan bias to the performance of their duties and furthermore to the operation of the public duties of administrative organs to which they belong, and inevitably causes the impairment of the people's trust in neutral administrative operations. In addition, public employees' partisan bias as mentioned above adversely makes it easy for political parties or factions to make an unjust intervention in administration and further increases the possibility of distortion of neutral administrative operations. Moreover, the expansion of such tendency fosters serious political conflicts in government organizations that originally assume the obligation to serve the entire people in an integrated manner while maintaining political neutrality, and thereby inhibits the efficient and stable operation of administration, and is furthermore likely to pose serious obstacles to the faithful performance of the State's policies that were determined after going through the political process based on the parliamentary democracy. Such likelihood is assumed to expand in proportion to the scale of a government organization, and thereby, it becomes impossible to prevent the adverse effects of the aforementioned tendency only by the internal discipline of the organization. Therefore, the prohibition of political acts that are likely to impair the political neutrality of public employees for the purpose of preventing the occurrence of such adverse effects and ensuring neutral administrative operations and the people's trust therein is just a measure to protect the joint benefits of the entire people, including public employees, in response to the requirement of the Constitution, and its purpose should be considered justifiable. In addition, the prohibition of political acts that are found to be likely to impair the political neutrality of public employees for the purpose of preventing the occurrence of adverse effects as mentioned above is found to have a reasonable relationship with the purpose of the prohibition, and even if the prohibition is imposed without making a distinction based on the type of job and official authority of public employees, whether acts are conducted outside working hours, and whether the State's facility is utilized to conduct acts, or the prohibition is imposed without being limited to acts that directly and specifically impair neutral administrative operations, the prohibition does not lose the aforementioned reasonable relationship.

Next, when considering the issue of balance of benefits, in a democratic state, the implementation of politics with the participation of as many people as possible is, needless to say, an important benefit to the entire people. Therefore, it is impermissible to make light of a negative aspect, in which the aforementioned benefit is lost by the prohibition of political acts of public employees who are also the members of the people, as a result of putting excessive emphasis only on the aspect that public employees are servants of the whole community. However, in the case of prohibiting a political act that falls under the type of actions that are likely to impair the political neutrality of public employees while not attempting to constrain the expression of an opinion that is included therein but instead with the aim of preventing adverse effects caused thereby, the prohibition will result in also constraining the freedom of expression of an opinion. However, that constraint is nothing more than an indirect and incidental constraint only in association with the prohibition of the action, and it does not go so far as to constrain the freedom to express an opinion by a type of act other than the types of actions provided in Article 102, paragraph (1) of the National Public Service Act and the Rules. On the other hand, benefits from the prohibition are the joint benefits of the entire people, specifically, maintenance of the political neutrality of public employees and ensuring of neutral administrative operations and the people's trust therein. Therefore, it should be said that the benefits obtained are more important than the benefits lost, and the prohibition does not lose the balance of benefits.

(3) When examining the political acts referred to in paragraph (5), item (iii) and paragraph (6), item (xiii) of the Rules that are questioned in this case from the aforementioned perspective, these acts are the acts of posting or distributing a document with the political purpose of supporting a specific political party, and just fall under the type of actions that are strongly politically biased. The acts are thus recognized as being highly likely to impair the maintenance of the political neutrality of public employees among political acts, and they clearly have a reasonable relationship with the purpose of prohibition of political acts. Moreover, the prohibition of those acts originally did not aim at constraining the expression of an opinion included therein but aimed at preventing adverse effects caused thereby, and it is for the purpose of protecting the joint benefits of the entire people. Therefore, it is not found that benefits obtained from the prohibition and benefits lost by the prohibition are imbalanced. Consequently, Article 102, paragraph (1) of the National Public Service Act and paragraph (5), item (iii) and paragraph (6), item (xiii) of the Rules are not found to go beyond the reasonable, necessary, and unavoidable limits, and thus cannot be considered to be in violation of Article 21 of the Constitution.

(4) Incidentally, the judgment in first instance cites the following fact as a ground for the determination that the prohibition is unconstitutional: the Acts of the accused were those that were conducted by a non-managerial public employee of a government enterprise, whose duty is just to provide routine labor, outside working hours without utilizing the State's facility and without exploiting their official capacities or without having the intention to harm the fairness of the exercise thereof, and conducted as part of labor union activities. The judgment in prior instance also upheld this. However, in the case where a political act like the Acts is conducted by a public employee, distinction based on whether the public employee is managerial or non-managerial, distinction based on whether he/she engages in operational work or clerical work, or the broadness of the scope of discretionary power, etc. does not make a difference in the fact that the political act inhibits the purpose of law of ensuring neutral administrative operations and the people's trust therein by maintaining the political neutrality of public employees. The aforementioned judgments focused on the duties of an individual public employee and determined that adverse effects caused by the violation of the prohibition are small on the grounds that the duties of the accused are routine duties involving no room for discretion. In this regard, the judgments are also unreasonable as long as the neutrality of the entirety of public duties in the government organizations, which function as an organic whole, should be questioned. As duties relating to postal service and postal savings are originally intended to broadly and fairly provide service and have service be used (see Article 1 of the Postal Act and Article 1 of the Postal Savings Act), they must be operated with emphasis on the fair provision of service to the entire people. Even if routine labor accounts for a great portion of the duties in terms of the nature of the duties, as pointed out in the judgment in prior instance, it does not give a reason for regarding the public employees of government enterprises who engage in that type of duties as an exception in relation to the public neutrality of public employees. In addition, according to the purport of the prohibition of public employees' political acts as mentioned above, such matters as whether a public employee conducts a political act during or outside working hours, whether a public employee utilizes the State's facility to conduct a political act, and whether a public employee exploits their official capacities to conduct a political act do not necessarily have a significant meaning in making a determination concerning the constitutionality of the prohibition of the political act. Furthermore, even if a political act is conducted as part of labor union activities, that fact does not become a reason for justifying the political act conducted by an individual public employee who is a member of the labor union. Moreover, when a political act that is prohibited for individual public employees is conducted as a labor union activity, it is extensively conducted in a planned manner through the organization of the labor union that has control over the members, and its adverse effects further increase. Thus, there is no reason that the prohibition of the act should be removed.

(5) The judgment in first instance and the judgment in prior instance also determined that adverse effects caused by the political acts in question are minor and used that point as an important ground for determining that the prohibition of the acts is unconstitutional. However, the acts of the accused in this case are the acts of having posted or distributed a document with the political purpose of supporting a specific political party on the occasion of the election of members of the House of Representatives, and those acts are direct and active support activities conducted for a specific political party in a specific election and must be considered as typical acts that are strongly politically biased. The adverse effects caused by leaving such acts as they are cannot be considered minor. In addition, even if only one public employee in one area conducts a specific political act and the aforementioned adverse effects are seemingly minor for that reason, regarding national public employees, in particular, as many of the structures of the government organizations to which they belong cover a wide range, it is impermissible to make light of a situation caused by the accumulation of such acts and underestimate the adverse effects thereof.

2. Constitutionality of penal provisions on the political acts in question

In addition, the judgment in first instance referred to the legislative process of the National Public Service Act based on the idea that even if it is not in violation of Article 21 of the Constitution to evaluate public employees' political acts as illegal and prohibit them, the application of penal provisions to the violation of the prohibition can additionally raise the issue of violation of Articles 21 and 31 of the Constitution, and then concluded that the penal provisions are unconstitutional to the extent that they are applied to the Acts of the accused. The judgment in prior instance also upheld this conclusion. Therefore, this point is examined below.

(1) As the imposition of a criminal penalty is basically the strictest sanction by the action of the sovereign right, needless to say, careful consideration is especially required when establishing penal provisions concerning matters related to the fundamental human rights. If provisions on criminal penalties are extremely unreasonable from the perspective of balance between crimes and punishments and various other perspectives and are thus hard to accept, they must be determined to be unconstitutional. Provisions on criminal penalties are to be specifically decided by the Diet, which is an organization representing the people, as the reflection of their legal consciousness based on a historical and realistic social basis in consideration of various factors, such as the nature of interests protected by law, the forms and results of relevant acts, reasons for requiring criminal penalties, and active and negative effects and influences brought about as a result of providing for criminal penalties by law. Statutory punishment for an illegal act should be stipulated in consideration of the level of the illegality of the act.

Incidentally, as mentioned above, the prohibition of public employees' political acts under Article 102, paragraph (1) of the National Public Service Act and the Rules is designed to protect the important joint benefits of the entire people, that is, the ensuring of neutral administrative operations and the people's trust therein by maintaining the political neutrality of public employees. Therefore, whether it is necessary to use a criminal penalty as a sanction against a public employee who conducts an act that impairs the joint benefits of the entire people in violation of the aforementioned prohibition is the issue of legislative policy from the perspective of protecting the aforementioned joint benefits of the entire people. As long as the aforementioned prohibition is considered to be a reasonable, necessary, and unavoidable restriction on the freedom of expression and there is no special circumstance to consider a criminal penalty to be unconstitutional, a decision made at the discretion of the legislature must be respected.

Looking at the developments leading to the establishment of the National Public Service Act, the initial National Public Service Act (Act No. 120 of 1947) did not have any penal provisions like Article 110, paragraph (1), item (xix) of the current law. The aforementioned provisions were added as a result of amendment by Act No. 222 of 1948. However, in the Local Public Service Act that was subsequently established as Act No. 261 of 1950, penal provisions that were initially set in relation to certain acts in the government bill: such as the fomentation of a political act, were deleted in the course of the Diet deliberations. On that occasion, the aforementioned penal provisions of the National Public Service Act were not deleted despite the aforementioned measure taken in relation to the Local Public Service Act, and remain as they are to this day. The reason is considered to be as follows: although national public employees and local public employees are equally public employees, adverse effects caused by their violation of the prohibition of political acts to neutral administrative operations are larger in the case of national public employees than in the case of local public employees; therefore, the necessity of maintaining penal provisions for national public employees has been approved by the Diet, which is an organization representing the people, in light of the actual social basis of Japan.

Then, leaving aside the fact that there is criticism regarding the establishment of the aforementioned penal provisions in the National Public Service Act from a policy perspective, in consideration of the importance of interests protected by these provisions, the decisions of the legislature concerning the necessity of the establishment of penal provisions and statutory punishment are not found to extremely deviate from the scope of its discretion. In particular, the political acts referred to in paragraph (5), item (iii) and paragraph (6), item (xiii) of the Rules, which are questioned in this case, are the acts of posting or distributing a document with the political purpose of supporting a specific political party, and as mentioned above, those acts fall under the type of actions that are strongly politically biased among political acts. The acts are thus highly likely to impair the political neutrality of public employees. It cannot be considered unreasonable to stipulate a criminal penalty of the level provided in the National Public Service Act by law in relation to such strongly illegal acts. Therefore, it cannot be said that the aforementioned penal provisions are in violation of Article 31 of the Constitution.

(2) In addition, as long as the prohibition of public employees' political acts was imposed from the perspective of protecting the joint benefits of the entire people, the violation of the prohibition is found to have illegality that is subject to a criminal penalty, and the prohibition is determined to be not in violation of Article 21 of the Constitution as mentioned above, there is no reason for considering that the establishment of penal provisions by law by considering the violation of the prohibition as a component of a crime is in violation of Article 21 of the Constitution.

(3) The judgment in first instance and the judgment in prior instance state that even if the prohibition of public employees' political acts is not in violation of Article 21 of the Constitution, the uniform application of penal provisions to political acts that cause only minor adverse effects is in violation of the same Article. However, in short, the level of adverse effects caused by a violation is just the issue of the level of illegality. Therefore, such opinion confuses the issue of the level of illegality and the issue of existence or absence of the violation of the Constitution, and it thus must be considered unreasonable.

(4) Furthermore, the judgment in prior instance ruled that a broad regulatory means is unconstitutional if there are less restrictive alternatives that can achieve the purpose of regulation, and then held that a disciplinary action is enough as a sanction against the Acts of the accused and that the establishment of penal provisions by law goes beyond the reasonable and minimum necessary limits and is thus unconstitutional. The judgment in first instance also cited an example of foreign legislation and then held that it is unconstitutional to establish penal provisions by law in relation to the violation of the prohibition of public employees' political acts, such as the Acts of the accused.

However, even if the constitutions of individual countries have a commonality in the provisions, each country has different historical experience and traditions, and the awareness of rights and the sense of freedom of their peoples also differ. The standards for determining the reasonableness of regulation on the fundamental human rights are basically not established away from the social bases of individual countries. When this point is applied to public employees' political acts, it must be said that all the issues of whether to leave regulation on such acts to public employees' own moderation and self-control, whether to prohibit public employees from conducting only specific political acts, whether to prohibit only specific public employees from conducting political acts, and what sanction is to be imposed on the violation of the prohibition are significantly associated with various social conditions, which are the outcomes of the history of each country. Therefore, although examples of foreign legislation constitute one of the important reference materials, applying an example of foreign legislation to Japan without change in disregard of the aforementioned various social conditions cannot be considered as an appropriate attitude in making a right constitutional judgment.

Regarding the provisions of the National Public Service Act of Japan, Article 110, paragraph (1), item (xix) of the same Act provides that a criminal penalty is imposed for the violation of the prohibition of public employees' political acts as mentioned above while Article 82 of the same Act provides that a disciplinary action can be imposed therefor. Furthermore, Article 85 of the same Act provides that a disciplinary action and the procedures for criminal prosecution can be carried forward in parallel in relation to the same case. Such legislation was adopted just for the following reason: a disciplinary action under the same Act is originally an administrative sanction imposed by the State on public employees in relation to specific acts that disrupt the internal order of public employees' organizations for the purpose of maintaining said order in a position equivalent to an employer at a private company; on the other hand, a criminal penalty is a judicial sanction imposed by the State in relation to specific acts that impair the joint benefits of the entire people for the purpose of protecting said joint benefits from the standpoint of conducting governance; and they differ in the purpose, nature, and effect. The act of violating the prohibition of public employees' political acts provides a sufficient basis for a disciplinary action that is imposed from the perspective of maintaining the internal order of public employees' organizations and also has illegality that provides a basis for a criminal penalty that is imposed from the perspective of protecting the joint benefits of the entire people, as mentioned above. Therefore, it cannot be considered as an unreasonable measure to establish penal provisions by law in relation to the act of violating the prohibition, in addition to a disciplinary action.

As mentioned above, a disciplinary action and a criminal penalty are separate sanctions that differ in the purpose, nature, and effect. Therefore, it should be considered unreasonable to compare the former and the latter by placing them on the same level and lightly determine by a judicial decision that the former is a less restrictive alternative.

Incidentally, it is possible to understand through reasonable interpretation of the provisions of Article 102, paragraph (1) of the National Public Service Act, which provide for delegation of authority to the rules of the National Personnel Authority regarding the establishment of provisions on political acts, that the same provisions provide for delegation of authority regarding the establishment of specific provisions on political acts that fall under the type of actions that are likely to impair the political neutrality of public employees. Then, as mentioned above, such political acts provide a sufficient basis for the imposition of a disciplinary action from the perspective of maintaining the internal order of public employees' organizations and also have illegality that provides a basis for a criminal penalty that is imposed from the perspective of protecting the joint benefits of the entire people. Therefore, the aforementioned provisions are not considered to go beyond the limits of delegation permitted by the Constitution just because they provide for uniform delegation of authority regarding the establishment of provisions on political acts that are subject to a disciplinary action under Article 82 of the same Act or a criminal penalty under Article 110, paragraph (1), item (xix) of the same Act.

(5) The judgment in first instance and the judgment in prior instance also determined that the aforementioned penal provisions are unconstitutional to the extent that they are applied to the Acts of the accused. However, this determination concludes that the application of the penal provisions is unconstitutional in relation to some of the cases to which the application of the penal provisions is naturally expected by laws and regulations, and it is, in short, equal to a determination that laws and regulations are partially unconstitutional. Therefore, it is impossible to escape the aforementioned criticism even by using such form of determination.

No. 3 Conclusion

As mentioned above, the penal provisions of Article 110, paragraph (1), item (xix) of the National Public Service Act that should be applied to the Acts of the accused are not in violation of Articles 21 and 31 of the Constitution. In addition, based on the facts held in the judgment in first instance and the judgment in prior instance, application of the aforementioned penal provisions to the aforementioned acts of the accused is also not in violation of the aforementioned provisions of the Constitution. As both the judgment in first instance and the judgment in prior instance erred in the interpretation of the aforementioned provisions of the Constitution, the public prosecutor's arguments are well-grounded. Accordingly, determinations concerning other arguments in the reasons for final appeal are omitted, and the judgment in first instance and the judgment in prior instance are quashed in accordance with the main clause of Article 410, paragraph (1) of the Code of Criminal Procedure. This Court finds that it can immediately render a judgment and furthermore renders a judgment concerning the case charged to the court in accordance with the proviso to Article 413 of the same Code.

When applying laws and regulations to the facts found in the judgment in first instance (based on the statements of the accused in the record of the first trial in first instance and written statements made by the accused, B, C, D, E, F, and G to the public prosecutor), both acts of the accused fall under Article 110, paragraph (1), item (xix) (in accordance with Articles 6 and 10 of the Penal Code, the minimum amount of a fine is the amount prescribed in Article 2, paragraph (1) of the Act on Temporary Measures concerning Fine and Others prior to amendment by Act No. 61 of 1972) and Article 102, paragraph (1) of the National Public Service Act and paragraph (5), item (iii) and paragraph (6), item (xiii) of the Rules. Therefore, out of prescribed punishment, a fine is chosen for both acts, and the acts jointly constitute a crime for consolidated punishment referred to in the first sentence of Article 45 of the Penal Code. Consequently, in accordance with Article 48, paragraph (2) of the same Code, the accused is punished by a fine of 5,000 yen, which is less than the total amount of fines specified in relation to the crimes. If the accused defaults in payment of the aforementioned fine in full, he/she will be detained in a workhouse for a term calculated by converting 1,000 yen to one day in accordance with Article 18 of the same Code. In accordance with the main clause of Article 181, paragraph (1) of the Code of Criminal Procedure, the court costs in prior instance and first instance shall be borne by the accused, and the Court decides as set forth in the main text of the judgment.

This judgment is based on the Court's unanimous opinion, except for the dissenting opinion stated by Justice OSUMI Kenichiro, Justice SEKINE Kosato, Justice OGAWA Nobuo, and Justice SAKAMOTO Yoshikatsu.

The dissenting opinion stated by Justice OSUMI Kenichiro, Justice SEKINE Kosato, Justice OGAWA Nobuo, and Justice SAKAMOTO Yoshikatsu is as follows.

Concerning the reasons for final appeal stated by the public prosecutor

The developments of this case are as stated in the majority opinion, and the reasons for final appeal stated by the public prosecutor are arguments of errors in the interpretation of Articles 21 and 31 of the Constitution and violation of a judicial precedent in relation to the determinations of the judgment in first instance and the judgment in prior instance.

Article 102, paragraph (1) of the National Public Service Act provides as follows in relation to public employees: "An official must not solicit, receive, or be in any manner involved in soliciting or receiving any donation or other benefit for any political party or political purpose, nor must engage in any political acts as provided for by rules of the National Personnel Authority other than to exercise the right to vote." Based on these provisions, Rules of the National Personnel Authority 14-7 provide for the detailed content of "political acts" prohibited by the aforementioned provisions. In relation to the violation of the aforementioned provisions and the Rules based thereon, Article 82 and subsequent provisions of the National Public Service Act provide for disciplinary actions, and Article 110, paragraph (1), item (xix) of the same Act provides for a criminal sanction. That is, regarding a sanction against a violation, Article 102, paragraph (1) of the National Public Service Act provides for delegation of authority regarding the establishment of provisions on the content of political acts that should be prohibited for public employees in a uniform and integrated way without making a distinction between political acts that deserve a disciplinary action and those that deserve a criminal penalty as a crime. We consider that such delegation of legislation is unconstitutional at least to the extent that it is related to the latter, that is, the part providing for delegation of authority regarding the establishment of provisions on the components of a crime, for the following reasons.

No. 1 Freedom of political activities as a fundamental human right and political neutrality of public employees

1. Importance of fundamental human rights relating to the freedom of political activities (Article 15, paragraph (1) and Articles 16 and 21 of the Constitution)

The freedom of political activities of the people is basically a fundamental human right that has the highest value among the people's individual human rights as one that provides the most important ground for justifying the authority of governance and the exercise thereof in a liberal democratic state. The freedom of political activities means the people’s freedom to have opportunities to directly and indirectly get involved in the State's basic policy decisions and conduct proactive activities for that purpose. It includes the freedom to conduct extremely wide-ranging acts, such as participation in the political process in a narrow sense, including the act of becoming a member of the Diet, which is an organization that decides the State's basic policies, getting involved in the procedure for electing such a member in various forms or forming and joining a political party or any other political organization and acting as a member thereof, as well as various other activities to work on and affect such political process ranging from collective actions, such as political assemblies and collective petitions, to the expression of a political opinion as a mere individual by various methods and in various forms. In this way, the freedom of political activities is not limited to the inward freedom of an individual such as the mere freedom of political thought and creed, and it is essentially the freedom of external active and social actions based on such freedom. The Constitution of Japan guarantees the freedom of political activities as one of the fundamental human rights of the people by the provisions of Article 15, paragraph (1) concerning suffrage, Article 16 concerning the right of petition, and Article 21 concerning the freedom of assembly, association, and expression.

Needless to say, the freedom of political activities as a fundamental human right as mentioned above is also not absolutely unrestricted, and it is not exempted from more or less complying with some sort of restriction if the restriction is truly inevitable for public interest. However, taking into account the fact that a proactive political activity is likely to be restricted by political power as it tends to confront and conflict with the opinion and benefit of the government of the moment in terms of its nature, we must say that in the case of imposing such restriction, it is required to make clear the reasons therefor and conduct especially careful examination concerning whether the restriction is sufficiently constitutionally justifiable.

2. Political neutrality of public employees (Article 15, paragraph (2) of the Constitution)

A national public employee is also constitutionally guaranteed the freedom of political activities as mentioned above as one of the people. However, Article 102 of the National Public Service Act and the Rules based on paragraph (1) of the same Article impose restriction as mentioned above on political activities of a person who falls into the category of public employees. The reason therefor is basically considered as follows. That is, under the Constitution, the National Public Service Act adopts a public employee system centered on a merit system in relation to public employees engaging in the State's administration for the purpose of "assuring the people democratic and efficient administration of public service" (Article 1 of the same Act). The principle of neutrality is considered as the essence of this merit system-centered public employee system. This is just because public employees should faithfully execute the political will of the legislature that directly represents the people and must not engage in administrative operations in accordance with their own political will and because it is also necessary to prevent the mixture of politics and administration and distortion of administration by the intervention of politics, based on a requirement for the separation of politics (legislation) and administration in a modern democratic state. The adoption of such public employee system in the National Public Service Act can be considered to conform to the purport and spirit of Article 15, paragraph (2) of the Constitution stipulating that public employees should be servants of the entire people.

3. Relationship between 1. and 2. above and the Constitution

In consideration of the purport and characteristic of the public employee system as mentioned above that was adopted in the National Public Service Act and, in particular, the principle of the public neutrality of public employees, public employees are not only required to strictly avoid conducting administrative activities that are based on certain political interests and influences and are not faithful to law in actual administrative operations but are also required to avoid taking actions with political nature that cause the risk of an administrative distortion as mentioned above or cause third parties to have such doubt even if they do not actually create such distortion. In addition, as public employees are more or less involved in the operation of national politics, if they conduct a political activity in a collective and organized manner, it cannot be said that there is no risk that the political activity itself constitutes a large political force and the exercise of its excessive influence unjustly distorts the democratic political process. Taking into account the fact that the State's administration is necessary and essential for the existence of the State and the maintenance of people's satisfying living and the fact that the political neutrality of administration is an extremely important requirement as mentioned above, it is undeniable that there are public interest and necessities that require the imposition of certain restrictions on public employees in relation to political activities that they conduct solely as individual citizens away from their duties as well.

However, it is impossible to conclude immediately from the above that it is constitutionally permitted to have the freedom of political activities: which is generally and abstractly a basic individual right of public employees, be subordinate to the requirement for the neutrality of administration and to impose any restriction on the freedom of political activities as long as the restriction is found to be necessary for that purpose. This is certainly because public employees vary in the content and nature of the business of administrative bodies to which they belong as well as their positions and the content and nature of their duties in the bodies, and the type, nature, form, size, and degree of political activities conducted by those public employees also vary; in accordance with the diversity of these matters, there are also large differences in the nature and degree of influence of specific political activities of individual public employees on the neutrality of administration and the significance, nature, degree, and importance of infringement caused by the prohibition of such acts to the freedom of political activities as a basic individual right of public employees. Therefore, when adjusting the aforementioned two conflicting interests protected by law or requirements, it is necessary to take a stance of restricting political activities of public employees in the case where the freedom of political activities of public employees must truly give ground to the benefit of maintenance of the neutrality of administration in consideration of the aforementioned differences as a result of careful examination of the mutual significance of those interests protected by law more concretely on a case-by-case basis, and only to that extent. In addition, as there are differences not only in the scope and content of political activities to be restricted but also in the nature and effect of the methods and forms of restriction, this point also remains to be an important factor in solving the aforementioned problem. The aforementioned point is not only the issue of legislative policy that falls under the Diet's exclusive power but should also be considered to be constitutionally required.

No. 2 Unconstitutionality of the delegation of legislation in relation to the components of a crime in Article 102, paragraph (1) of the National Public Service Act (Article 110, paragraph (1), item (xix) of the same Act)

1. Problem with uniform delegation of authority to the rules of the National Personnel Authority regarding political acts subject to a discipline relating to employment as a public employee and those subject to punitive authority without making a distinction based on their content and scope (Article 82 and Article 110, paragraph (1), item (xix) of the National Public Service Act)

As described at the beginning, in addition to direct prohibition of acts in some specific forms in relation to political activities of public employees, Article 102 of the National Public Service Act generally prohibits the political acts specified in the rules of the National Personnel Authority, except for the exercise of the right to vote, and entirely delegates authority regarding the determination of the specific content and scope of prohibited acts to the National Personnel Authority. In addition, in terms of the method of prohibition, the same Article not only provides for prohibited acts merely as the issue of rights and obligations relating to employment as a public employee but also provides that those acts should be handled as crimes accompanied by a criminal sanction. Such method of regulation in the National Public Service Act itself is considered to raise the following serious constitutional issues, even apart from the propriety of the content of specific prohibitive provisions in the Rules based on the same Act: [a] the scope of restriction approved under the Constitution should differ between the case of prohibiting public employees from conducting a certain political act as a discipline relating to employment as a public employee and the case of prohibiting a public employee, as an individual subject to punitive authority, from conducting political acts apart from their employment as a public employee; therefore, there is the issue of whether it is in violation of Article 15, paragraph (1) and Articles 16, 21, and 31 of the Constitution to equate these cases and uniformly provide for the scope of such restriction; [b] in restricting political acts of public employees, if the Diet neither directly specifically examines the necessity of restriction on the political activities of public employees nor decides the scope of restriction but delegates the entirety of the examination and decision of restriction to the National Personnel Authority, it means that the legislature waives the essential part of legislative function that it itself should perform at a public meeting (Article 57 of the Constitution) under the people's supervision and transfers it to another non-public State organ; therefore, there is the issue of whether such delegation is in violation of Article 41 of the Constitution; and [c] in relation to the issues mentioned in [a] and [b] above, there is the issue of whether uniform delegation of authority to the Rules regarding the establishment of specific provisions on the prohibition of political acts without making a distinction between the prohibition of political acts as the cause of a disciplinary action and that as the cause of a punishment is in violation of the Constitution.

In terms of their nature, these issues must be considered as issues that should be examined and decided before starting the examination of the issue of the propriety of the content of specific prohibitive provisions in the Rules that were established based on the aforementioned delegation of powers.

2. Detailed discussion on 1. Above

(1) Political acts subject to a discipline relating to employment as a public employee and political acts subject to punitive authority are constitutionally distinguished in terms of the content and scope, respectively (Article 15, paragraph (1) and Articles 16, 21, and 31 of the Constitution).

[1] Concerning political acts subject to a discipline relating to employment as a public employee (Article 73, item (iv) and Articles 15, 16, and 21 of the Constitution and Article 102, paragraph (1) and Article 82 of the National Public Service Act)

The legal relationship established between a public employee and the State is the relationship of rights and obligations that is established between an individual who provides their own labor for their duties and activities as a public employee and the State that performs public duties by using that individual, and it is basically established based on the wills of both parties. The content of that relationship can originally be decided by agreement of the parties unless it is directly provided by law. However, it is not appropriate to decide all matters relating to employment as a public employee by agreement of the parties. On the other hand, the Constitution provides that this issue should not be delegated to the complete discretion of the administrative body but should be handled in accordance with standards established by law (Article 73, item (iv)). Therefore, the legal content of employment as a public employee is actually provided in detail by various related laws, including the Public National Act, and the specific content thereof covers extremely wide-ranging matters, including the method, standards, and procedure of appointment that serve as a basis for the establishment of employment as a public employee, standards for working conditions, such as working hours, remuneration, and change of status in working, discipline concerning public employees' acts on and off work, and settlement of disputes in relation to employment as a public employee.

In this manner, in establishing the legal content to regulate employment as a public employee, the Diet, as the legislature, has broad discretion, and the Diet examines the most desirable public employee system under the Constitution and can take measures to realize such public employee system based on that idea of the most desirable system. Specific legislative measures adopted and decided by the Diet must be considered to conform to the Constitution and be valid to the extent that they can be reasonably determined to be necessary or appropriate for purposes that can be approved under the Constitution.

It is also found that the prohibition of political acts of public employees under Article 102 of the National Public Service Act was provided for as part of the realization of the public employee system as mentioned above and as one of the obligations or burdens of public employees on or off work in relation to employment as a public employee. The purposes or reasons of the prohibition exist in meeting the requirement for the political neutrality of public employees in the merit system-centered public employee system adopted in the National Public Service Act, and public employees themselves were also imposed the obligation to comply with political neutrality to a certain extent as the other aspect of the elimination of political consideration or influence in terms of the appointment and dismissal, promotion, and change of status, as mentioned above.

As long as the merit system-centered public employee system conforms to the spirit of the Constitution and the maintenance of the political neutrality of public employees required by that system is based on purposes approved under the Constitution, even if the freedom of political activities is the most important basic individual right under the Constitution, it must be considered constitutionally permissible to impose constraint on the aforementioned right of persons who enter into a certain legal relationship: employment as a public employee, with the State based on their own will, to the extent that the constraint is reasonably found to be necessary and reasonable to achieve the aforementioned purposes, as part of said legal relationship.

Moreover, with regard to the reasonableness of the Diet's determination concerning the necessity of restriction based on the aforementioned standards, in consideration of the broadness of the Diet's discretion as mentioned above, it should be considered permissible to take into account not only strict and narrow perspectives, such as whether a specific political act involves a real risk of infringing the political neutrality of public employees, but also the issue of whether wide-ranging acts of that kind generally have an abstract risk of infringement as mentioned above. Therefore, the constitutionality of the prohibition of political acts under Article 102 of the National Public Service Act should be determined in light of the aforementioned standards as long as the prohibition sets obligations that are to be enforced by a disciplinary action as a sanction against the violation of the obligations relating to employment as a public employee. As long as the prohibition conforms to these standards, there is no reason to determine that the prohibition is unconstitutional.

[2] Concerning the political acts of public employees subject to punitive authority (Article 15, paragraph (1) and Articles 16, 21, and 31 of the Constitution)

The imposition of a criminal penalty is basically the strongest power that is unilaterally exercised to persons who yield to general sovereignty based on that sovereignty, and it should be applied only to individuals' acts that the State finds seriously antinational and antisocial from the perspective of general governance, that is, acts that damage order in the State and society. Acts that merely have a risk of indirectly exerting an adverse effect on order in the State and society: such as a violation of an obligation in a mere legal relationship between private individuals and an act of violating an internal discipline of a public or private body or organization, cannot naturally become the subject of punishment. Generally, individuals' freedom is subject to legal constraints due to various reasons in a wide variety of relationships. However, the scope in which those constraints are legally approved is not necessarily the same depending on the relationship and reason, and the same also applies to the freedom of political activities of public employees. Ultimately, a legal restriction that is imposed on the freedom of political activities of public employees as part of the rights and obligations relating to employment as a public employee that is established based on agreement between the parties, and a restriction on the aforementioned freedom that is imposed by a penal sanction based on general sovereignty totally differ from each other in the purpose, ground, nature, and effect. The division between civil liability and criminal liability and their development are observed in this fact. Therefore, whether the aforementioned two kinds of restrictions are approved under the Constitution must be naturally examined and determined separately through discussion, and the scope of political activities conducted by public employees as citizens when off public duties which can be restricted and prohibited by a penal sanction should be determined based on constitutional standards and principles that are applied to the cases where the State generally restricts and prohibits political activities of the people by a penal sanction for certain governance purposes.

From the aforementioned perspective, restriction on the freedom of political activities of public employees by a penal sanction is constitutionally approved not merely on the grounds that a prohibited political act is in violation of an obligation relating to employment as a public employee that was established merely for the purpose of maintaining the public neutrality of administration, but is constitutionally approved only where a prohibited political act itself directly causes or is likely to cause serious infringement to national or social benefits and the prohibition of the act by a criminal penalty is required, such as the cases where the political act creates a remarkable risk of distorting public employees' duties and activities, where the political act actively inhibits the maintenance and operation of the public employee system and it is difficult to prevent the inhibition only by internal means, and where the political act has the nature of unjustly distorting the democratic political process.

Furthermore, in consideration of the fact that individuals' freedom of political activities is constitutionally an extremely important right, it should be said that restriction on that freedom by a penal sanction based on general sovereignty is constitutionally acceptable only in the case where the restriction is truly inevitable for the purpose of protecting important national and social benefits that clearly prevail over the benefits of the political freedom affected by the restriction and the content of the restriction is within the truly necessary minimum limits. That is, restriction on freedom in such form cannot be considered to be constitutional only for such reasons as the mere existence of the necessity of protecting national and social benefits, the involvement of a conceptual possibility or abstract risk of infringement of the aforementioned benefits in the relevant act, and the existence of a request for a strong prohibitive measure accompanied by a criminal penalty as a reliable measure for protecting the aforementioned benefits. This is just for the following reason: political activities in general, especially, political activities with an anti-government tendency, tend to be perceived as those that cause infringement of national and social benefits by persons with political power; however, it is relatively easy to affirm the existence of such risk and possibility as long as they are viewed in a conceptual or abstract manner; therefore, unless the strict standards or principles as mentioned above are applied to restriction on the freedom of political activities, the people's political freedom is easily suppressed by the power of the time under the aforementioned pretext, and the fundamental principle of the Constitution, liberal democracy, is likely to lose its basis. We must not disregard many adverse effects caused by restrictions on freedom based on policymakers' excessive caution and wariness in past history. It must be said that the same also applies to political activities of public employees.

[3] Unconstitutionality of paragraph (6), item (xiii) of the Rules (Article 15, paragraph (1) and Articles 16, 21, and 31 of the Constitution)

In light of the aforementioned standards, for example, the publication, distribution, writing, etc. of a document under paragraph (6), item (xiii) of the Rules, which are questioned in this case, are just the expressions of a political opinion, which is one of the most fundamental and core elements among political activities, and those acts cannot be separated into the aspect of the expression of an opinion and the aspect of an action. The prohibition of those acts not only constitutes constraint on the expression of a political opinion itself, but when construing the prohibition together with a broad and extremely abstract definition of political purposes in paragraph (5) of the Rules: in particular, items (iii) to (vi) of the same paragraph, the prohibition also imposes comprehensive and general prohibition of the acts of getting involved in the aforementioned expression of an opinion in prescribed forms only on the grounds that a person who conducts the relevant acts has a status of a public employee, without questioning what realistic and direct infringement the acts will cause to national and social benefits, such as the maintenance of the political neutrality of administration, or what degree of risk of such infringement will be caused by the acts, in light of the type of job and status of the person, the nature, etc. of business of the administrative body to which the person belongs, the purpose of specific involvement, the content and form of the involvement, and circumstances before and after the act, etc. In fact, the prohibition almost deprives public employees of wide-ranging opportunities to express a political opinion, such as criticism against the State's policy and suggestions. Therefore, at the least, it must be said that the prohibition is inevitably considered to be unconstitutional as an excessively broad restriction on public employees' freedom of political speech as prohibitive provisions accompanied by a criminal penalty, apart from the issue of whether the prohibition can be considered as a reasonable restriction as an obligation set in relation to employment as a public employee.

As mentioned above, the prohibition of political acts of public employees differs in the meaning, nature, and effect between the case where it is provided as an obligation relating to employment as a public employee and the case where it is provided as an act subject to a criminal penalty, and it also inevitably differs in the constitutionally permissible scope. Therefore, it is impossible to consider that whether the prohibition conforms to the Constitution as restriction should be determined in complete disregard for these points while only focusing on the fact that acts are prohibited, and to construe that whether to impose a disciplinary action or a criminal penalty on the violation of the prohibition is just the issue of propriety in terms of legislative policy regarding a mere compulsory means.

(2) Delegation of authority under Article 102, paragraph (1) of the National Public Service Act

[1] Delegation of authority regarding the establishment of provisions on political acts subject to a discipline relating to employment as a public employee (Article 73, item (iv) of the Constitution and Articles 36 and 29 of the Local Public Service Act)

For the reason described above, when specifically providing for the prohibition of political acts of public employees directly by law, it is necessary to distinguish the case of providing the prohibition as a discipline relating to employment as a public employee and the case of providing it as a component of a criminal penalty, and to provide for the specific content of the prohibition in accordance with different perspectives and considerations as mentioned above. With regard to the content of the prohibition actually provided, whether it is in violation of the Constitution should be examined based on different standards. Nevertheless, as mentioned above, Article 102 of the National Public Service Act does not directly provide for the content and scope of prohibited acts but delegates the establishment of such provisions entirely to the rules of the National Personal Authority. For that reason, the issue of the propriety of the delegation arises, as pointed out above. Considering this point sequentially, first, in general terms, if the Diet delegates the establishment of provisions on the specific content of limited matters in a law to another State organ, such delegation cannot necessarily be considered to be unconstitutional as long as there is the reasonable necessity for the delegation and the Diet does so while giving guidance to the organ or giving instructions about the objects of constraint, standards, elements to be considered, etc. to the organ so as to prevent the organ from establishing the specific provisions as it pleases. In addition, it is not necessary to clearly specify the aforementioned instructions in provisions concerning the delegation, and it is also considered that instructions can be those that are reasonably drawn from other provisions of the law or the entirety of the law. Looking at the provisions of Article 102, paragraph (1) of the National Public Service Act from this perspective, the delegation under the same paragraph gives no instruction about standards for differentiating political acts that can be prohibited and those that cannot be prohibited, except for the exclusion of the exercise of the right to vote. However, when looking over other provisions of the National Public Service Act, it is clear that the aforementioned prohibition is designed to achieve the purport and purpose of the merit system-centered public employee system adopted in the National Public Service Act, in particular, the purpose of maintaining the neutrality of administration. On the other hand, in general, if law delegates authority regarding the determination of specific measures for the purpose of achieving a specific purpose to another organ, it should be considered that the law delegates authority regarding the establishment of provisions on measures that are reasonably found to be necessary and reasonable for the purpose of achieving the aforementioned purpose even if it does not clearly specify that effect. Therefore, the delegation of authority to the rules of the National Personnel Authority regarding the specification of prohibited acts under the aforementioned provisions of the law can also be considered to the delegation of the authority to concretely specify the political acts of public employees that damage or are likely to damage the neutrality of administration or trust therein, of which prohibition is reasonably found to be necessary and reasonable for the purpose of maintaining such neutrality or trust therein. Moreover, in consideration of the diversity of public employees, the extensiveness of political activities and diversity of their forms and content, the complexity and diversity of the degree of necessity of prohibition associated therewith, and the possibility of changes of these elements due to changes in social and political situation, etc., it is found reasonable to delegate authority regarding the specification of the scope and content of specific prohibited acts to another competent State's organ. In addition, in light of the fact that the National Personnel Authority is a State's organ, which has a reasonable degree of independence from the Cabinet and is guaranteed to be politically neutral, and has responsibility to engage in the fair enforcement and application of law in relation to employment as a public employee as a whole in such position, it is considered that the extensive and general delegation of legislation based on the abstract standards of the aforementioned degree is unlikely to cause an abuse of the delegation and is rather expected to realize the establishment of appropriate and reasonable rules in line with the reality and the flexible application thereof. Then, as mentioned above, it is approved that a discipline relating to employment as a public employee imposes constraint on public employees' freedom of political activities to the extent that the constraint is reasonably found to be necessary and reasonable for the purpose of maintaining the neutrality of administration. Therefore, when considering the aforementioned points together, it should be said that the delegation of authority to the Rules regarding the establishment of specific provisions on the prohibition of political acts of public employees in relation to employment as a public employee is not considered to be an unconstitutional invalid delegation, apart from the issue of whether the individual provisions of the Rules established based on that delegation are unconstitutional or are to be partially invalidated as those that go beyond the scope of the delegation (see Articles 36 and 29 of the Local Public Service Act).

[2] Delegation of authority regarding the establishment of provisions on political acts subject to punitive authority (Article 41, Article 15, paragraph (1), and Articles 16, 21, and 31 of the Constitution)

However, it cannot be considered lawful to delegate authority regarding the establishment of provisions on prohibited acts in the case where a violation of the provisions is subject to a criminal penalty based on the same standards as in the case where a violation is subject to a discipline relating to employment as a public employee. Certainly, the former case differs from the latter case in the purpose, ground, nature, and effect of prohibition and also in the scope of political acts that can be constitutionally prohibited, as mentioned above. Therefore, in delegating authority regarding the specification of the specific content of the provisions, it is naturally necessary to instruct that the provisions should be established in accordance with different, stricter standards or elements to be considered.

Nevertheless, the provisions of Article 102, paragraph (1) of the National Public Service Act delegate authority regarding the establishment of provisions on prohibition in a uniform and integrated way without making a distinction between prohibition as an obligation or burden relating to employment as a public employee and prohibition covered by penal provisions and does not indicate any special standards for the content of prohibited acts subject to penal provisions, as mentioned above. In addition, it is impossible to find any provisions that are found to instruct special standards as mentioned above even by looking over other provisions of the same Act and making as reasonable an interpretation as possible. The only possible interpretations are that this is because the same Act is premised on an erroneous understanding that the scope and content of prohibited acts in relation to both of those cases may be provided for based on exactly the same standards and considerations or because no thought was given to the existence of the aforementioned distinction under the Constitution. Therefore, the indiscriminate and integrated delegation of legislation under Article 102, paragraph (1) of the National Public Service Act as mentioned above must be determined to be in violation of Article 41, Article 15, paragraph (1), and Articles 16, 21, and 31 of the Constitution and be invalid at least in relation to the delegation of authority regarding the establishment of provisions on prohibited acts subject to a criminal penalty.

No. 3 Conclusion

As instructed above, the delegation of authority to the rules of the National Personnel Authority regarding the prohibition of political acts under Article 102, paragraph (1) of the National Public Service Act is invalid as far as the establishment of prohibitive provisions covered by punishment under Article 110, paragraph (1), item (xix) of the same Act is concerned. Therefore, the Rules that were established based on this delegation is also invalid in this regard. Consequently, it is impossible to impose punishment pursuant to the aforementioned penal provisions for the reason of violation of the Rules. Accordingly, the past judgment of the Supreme Court that goes against this should be altered. For that reason, the judgment in prior instance that invalidated the provisions of paragraph (6), item (xiii) of the Rules to the extent that they are applied to the acts of the accused and acquitted the accused is justifiable in its conclusion. Therefore, in the end, the final appeal is groundless and should be dismissed.

The public prosecutors in charge attended the trial.

November 6, 1974

Grand Bench of the Supreme Court

Justice MURAKAMI Tomokazu

Justice SEKINE Kosato

Justice FUJIBAYASHI Ekizo

Justice OKAHARA Masao

Justice OGAWA Nobuo

Justice SHIMODA Takeso

Justice KISHI Seiichi

Justice AMANO Buichi

Justice SAKAMOTO Yoshikatsu

Justice KISHIGAMI Yasuo

Justice ERIKUCHI Kiyoo

Justice OTSUKA Kiichiro

Justice TAKATSUJI Masami

Justice YOSHIDA Yutaka

Justice OSUMI Kenichiro is unable to affix his signature and seal due to retirement.

Justice MURAKAMI Tomokazu